IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1997 SESSION FILED August 15, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9701-CC-00001 Appellee, ) ) TIPTON COUNTY VS. ) ) HON. JOSEPH H. WALKER, III ) JUDGE MARTIN THOMAS TERRELL, ) ) (Aggravated Kidnapping) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS (on appeal) JOHN KNOX WALKUP 202 S. Maple Street, Ste. C Attorney General & Reporter Covington, Tennessee 38019 DEBORAH A. TULLIS GARY F. ANTRICAN (trial only) Assistant Attorney General District Public Defender 450 James Robertson Parkway P.O. Box 700 Nashville, Tennessee 37243-0493 Somerville, Tennessee 38068 ELIZABETH T. RICE DAVID S. STOCKTON (trial only) District Attorney General Assistant Public Defender 131 A Industrial Road WALTER FREELAND Covington, Tennessee 38019 Assistant District Attorney General 302 Market St. Somerville, Tennessee 38068
OPINION FILED: _________________
AFFIRMED
JOE G. RILEY, JUDGE
OPINION The defendant, Martin Thomas Terrell, appeals as of right a jury conviction of
aggravated kidnapping, burglary, reckless endangerment with a deadly weapon, and
driving on a revoked or suspended license. Although the defendant poses the issue
solely as insufficiency of the evidence for the aggravated kidnapping conviction,
there are two true issues presented for our review: 1) whether his constitutional right
to due process was violated when the District Attorney General chose to indict upon
especially aggravating kidnapping instead of attempted aggravated robbery; and 2)
whether the evidence is sufficient to sustain the aggravated kidnapping conviction.
Finding no error, the judgment of the trial court is AFFIRMED.
FACTS
The relevant facts which are undisputed in this case involve the breaking and
entering of the Creekmore Piggly Wiggly in Covington, Tennessee. The defendant
and another man gained entry to the store by prying open a metal door in the garden
center. Randy Hazelrig, the store manager, and Jerry Griffin, another employee,
arrived to open the store for business, and the defendant and the second man hid.
They later jumped out and ordered Hazelrig to open the safe and ordered Griffin not
to move. Although no guns were displayed, the two men threatened to shoot
Hazelrig and Griffin if their orders were not followed.
Griffin was able to back out the front door and run across the street to call the
police. With a sledgehammer in hand, the defendant forced Hazelrig into the office
to open the safe. As Hazelrig attempted to open the safe, he triggered an alarm
which apparently scared the two men. The second man said, “[h]it that m---f--- in the
head and let’s get out of here.” When Hazelrig looked up, both men had fled the
store.
The police arrived as the men were driving away and a high speed chase
ensued. The defendant was apprehended when he stopped the car and started to
run away on foot. The other man was never apprehended.
2 At trial, Hazelrig and Griffin testified with regard to the above events. Linda
Gamblin, a criminal investigator, also provided testimony. She stated that she took a
statement from the defendant in which he admitted his involvement in this criminal
episode.
The defense did not offer any proof.
DUE PROCESS VIOLATION
By indicting the defendant for especially aggravated kidnapping1 instead of
attempted aggravated robbery, the defendant argues the district attorney violated his
constitutional right to due process. Specifically, defendant contends he was
unlawfully indicted by the district attorney general.
We must first note that this issue has been waived because it was not raised
in the motion for new trial. Tenn. R. App. P. 3(e). Nevertheless, we will address the
merits of this issue.
Prosecutorial Discretion
It has been often recognized that “prosecutorial discretion in the
charging process is very broad.” Quillen v. Crocket, 928 S.W.2d 47, 51 (Tenn. Crim.
App. 1995)(citing Cooper v. State, 847 S.W.2d 521, 536 (Tenn. Crim. App. 1992)).
“So long as the prosecutor has probable cause to believe that the accused
committed an offense, the decision whether to prosecute, and what charge to bring
before a grand jury generally rests entirely within the discretion of the prosecution,”
limited only by certain constitutional constraints. State v. Lunati, 665 S.W.2d 739,
746 (Tenn. Crim. App. 1983); Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098,
2102, 40 L.Ed.2d 628 (1974) (Due Process may be implicated if a prosecutor
vindictively increases a charge to a felony after a misdemeanant has prevailed on
appeal). The district attorney general is answerable to no superior and has virtually
1 Although indicted for especially aggravated kidnapping, the defendant was actually convicted of the lesser offense of aggravated kidnapping.
3 unbridled discretion in determining whether to prosecute and for what offense.
Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978); see also State v. Gilliam,
901 S.W.2d. 385, 389 (Tenn. Crim. App. 1995).
After breaking into the store, the defendant, while holding a sledgehammer,
forced the victim to go to the store’s office, some twelve feet away. On these facts,
the district attorney general charged the defendant with especially aggravated
kidnapping.2 As noted above, we will not interfere with a district attorney general’s
charging process absent some constitutional violation. The district attorney general
properly sought an indictment for this offense. The record does not reflect any
abuse of discretion on behalf of the district attorney general. This issue is without
merit.
State v. Anthony
In arguing that the especially aggravated kidnapping charge violates due
process, the defendant principally relies upon State v. Anthony, 817 S.W.2d 299
(Tenn. 1991). The defendant contends that the aggravated kidnapping which
occurred in this case was incidental to the uncharged attempted aggravated robbery.
By contrast, the issue raised in Anthony was whether a defendant could be
convicted of both armed robbery and aggravated kidnapping growing out of a single
criminal episode. Our Supreme Court held that a double jeopardy analysis is
inadequate to resolve this issue and analyzed the issue as one involving due
process. The issue is whether the confinement, movement, or detention is
essentially incidental to the accompanying felony and is not, therefore, sufficient to
support a separate conviction for kidnapping, or whether it is significant enough, in
and of itself, to warrant independent prosecution and is, therefore, sufficient to
support such a conviction. Anthony, 817 S.W.2d at 306. Accordingly, the Anthony
analysis applies when there are multiple or dual convictions consisting of a felony
2 The full indictment included especially aggravated kidnaping, burglary, reckless endangerment with a deadly weapon, and driving on a revoked or suspended license.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1997 SESSION FILED August 15, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9701-CC-00001 Appellee, ) ) TIPTON COUNTY VS. ) ) HON. JOSEPH H. WALKER, III ) JUDGE MARTIN THOMAS TERRELL, ) ) (Aggravated Kidnapping) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS (on appeal) JOHN KNOX WALKUP 202 S. Maple Street, Ste. C Attorney General & Reporter Covington, Tennessee 38019 DEBORAH A. TULLIS GARY F. ANTRICAN (trial only) Assistant Attorney General District Public Defender 450 James Robertson Parkway P.O. Box 700 Nashville, Tennessee 37243-0493 Somerville, Tennessee 38068 ELIZABETH T. RICE DAVID S. STOCKTON (trial only) District Attorney General Assistant Public Defender 131 A Industrial Road WALTER FREELAND Covington, Tennessee 38019 Assistant District Attorney General 302 Market St. Somerville, Tennessee 38068
OPINION FILED: _________________
AFFIRMED
JOE G. RILEY, JUDGE
OPINION The defendant, Martin Thomas Terrell, appeals as of right a jury conviction of
aggravated kidnapping, burglary, reckless endangerment with a deadly weapon, and
driving on a revoked or suspended license. Although the defendant poses the issue
solely as insufficiency of the evidence for the aggravated kidnapping conviction,
there are two true issues presented for our review: 1) whether his constitutional right
to due process was violated when the District Attorney General chose to indict upon
especially aggravating kidnapping instead of attempted aggravated robbery; and 2)
whether the evidence is sufficient to sustain the aggravated kidnapping conviction.
Finding no error, the judgment of the trial court is AFFIRMED.
FACTS
The relevant facts which are undisputed in this case involve the breaking and
entering of the Creekmore Piggly Wiggly in Covington, Tennessee. The defendant
and another man gained entry to the store by prying open a metal door in the garden
center. Randy Hazelrig, the store manager, and Jerry Griffin, another employee,
arrived to open the store for business, and the defendant and the second man hid.
They later jumped out and ordered Hazelrig to open the safe and ordered Griffin not
to move. Although no guns were displayed, the two men threatened to shoot
Hazelrig and Griffin if their orders were not followed.
Griffin was able to back out the front door and run across the street to call the
police. With a sledgehammer in hand, the defendant forced Hazelrig into the office
to open the safe. As Hazelrig attempted to open the safe, he triggered an alarm
which apparently scared the two men. The second man said, “[h]it that m---f--- in the
head and let’s get out of here.” When Hazelrig looked up, both men had fled the
store.
The police arrived as the men were driving away and a high speed chase
ensued. The defendant was apprehended when he stopped the car and started to
run away on foot. The other man was never apprehended.
2 At trial, Hazelrig and Griffin testified with regard to the above events. Linda
Gamblin, a criminal investigator, also provided testimony. She stated that she took a
statement from the defendant in which he admitted his involvement in this criminal
episode.
The defense did not offer any proof.
DUE PROCESS VIOLATION
By indicting the defendant for especially aggravated kidnapping1 instead of
attempted aggravated robbery, the defendant argues the district attorney violated his
constitutional right to due process. Specifically, defendant contends he was
unlawfully indicted by the district attorney general.
We must first note that this issue has been waived because it was not raised
in the motion for new trial. Tenn. R. App. P. 3(e). Nevertheless, we will address the
merits of this issue.
Prosecutorial Discretion
It has been often recognized that “prosecutorial discretion in the
charging process is very broad.” Quillen v. Crocket, 928 S.W.2d 47, 51 (Tenn. Crim.
App. 1995)(citing Cooper v. State, 847 S.W.2d 521, 536 (Tenn. Crim. App. 1992)).
“So long as the prosecutor has probable cause to believe that the accused
committed an offense, the decision whether to prosecute, and what charge to bring
before a grand jury generally rests entirely within the discretion of the prosecution,”
limited only by certain constitutional constraints. State v. Lunati, 665 S.W.2d 739,
746 (Tenn. Crim. App. 1983); Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098,
2102, 40 L.Ed.2d 628 (1974) (Due Process may be implicated if a prosecutor
vindictively increases a charge to a felony after a misdemeanant has prevailed on
appeal). The district attorney general is answerable to no superior and has virtually
1 Although indicted for especially aggravated kidnapping, the defendant was actually convicted of the lesser offense of aggravated kidnapping.
3 unbridled discretion in determining whether to prosecute and for what offense.
Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978); see also State v. Gilliam,
901 S.W.2d. 385, 389 (Tenn. Crim. App. 1995).
After breaking into the store, the defendant, while holding a sledgehammer,
forced the victim to go to the store’s office, some twelve feet away. On these facts,
the district attorney general charged the defendant with especially aggravated
kidnapping.2 As noted above, we will not interfere with a district attorney general’s
charging process absent some constitutional violation. The district attorney general
properly sought an indictment for this offense. The record does not reflect any
abuse of discretion on behalf of the district attorney general. This issue is without
merit.
State v. Anthony
In arguing that the especially aggravated kidnapping charge violates due
process, the defendant principally relies upon State v. Anthony, 817 S.W.2d 299
(Tenn. 1991). The defendant contends that the aggravated kidnapping which
occurred in this case was incidental to the uncharged attempted aggravated robbery.
By contrast, the issue raised in Anthony was whether a defendant could be
convicted of both armed robbery and aggravated kidnapping growing out of a single
criminal episode. Our Supreme Court held that a double jeopardy analysis is
inadequate to resolve this issue and analyzed the issue as one involving due
process. The issue is whether the confinement, movement, or detention is
essentially incidental to the accompanying felony and is not, therefore, sufficient to
support a separate conviction for kidnapping, or whether it is significant enough, in
and of itself, to warrant independent prosecution and is, therefore, sufficient to
support such a conviction. Anthony, 817 S.W.2d at 306. Accordingly, the Anthony
analysis applies when there are multiple or dual convictions consisting of a felony
2 The full indictment included especially aggravated kidnaping, burglary, reckless endangerment with a deadly weapon, and driving on a revoked or suspended license. However, our attention focuses on the charge of aggravated kidnaping since it is the only charge the defendant contests.
4 that would inherently involve a kidnapping and the defendant is convicted of both.
Whereas Anthony addresses the question of which convictions may constitutionally
stand, the question presented in this appeal concerns whether a kidnapping
conviction alone may stand.
In this case, the district attorney general in her discretion chose to charge
especially aggravated kidnapping and not attempted aggravated robbery. A
prosecutor may choose, consistent with Anthony, to charge only kidnapping when
confronted by factual scenarios contemplated by the Supreme Court in Anthony.
State v. Ricky Michael Dixon, C.C.A. No. 03C01-9504-CR-00121, slip op. at 7,
Hamilton County, (Tenn. Crim App. filed October 15, 1996, at Knoxville) perm. to
appeal granted ( April 14, 1997). Consequently, Anthony is inapplicable to this case.
In fact, Anthony would not have been violated had this defendant been indicted for
both charges and yet convicted of only aggravated kidnapping.
SUFFICIENCY OF THE EVIDENCE
The defendant argues the evidence is insufficient to sustain the aggravated
kidnapping conviction. As stated above, the defendant contends the aggravated
kidnapping was essentially incidental to the uncharged attempted aggravated
robbery.
Where sufficiency of the evidence is challenged, the relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
The weight and credibility of the witnesses' testimony are matters entrusted
exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn.
1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
A defendant commits the offense of aggravated kidnapping who knowingly
5 removes or confines another unlawfully so as to interfere substantially with the
other’s liberty while the defendant is in possession of a deadly weapon or threatens
the use of a deadly weapon. Tenn. Code Ann. § 39-13-304(a)(5).
False imprisonment is used as the basic offense for the kidnapping statutes.
This statute broadly addresses any situation where there is an interference with
another’s liberty. See Tenn. Code Ann. § 39-13-302, Sentencing Commission
Comments. As such, this case ultimately hinges upon whether the removal of the
victim interfered substantially with his liberty.
The facts, as stated above, involve the defendant and another man ordering
Hazelrig to open the safe. The defendant and the second man said they would
shoot him if their orders were not followed. The defendant, with a sledgehammer in
his hand, forced Hazelrig to go to the office, twelve feet away, and open the safe.
When Hazelrig did not immediately open the safe, the second man told the
defendant to “hit that m---f--- in the head and let’s get out of here.” The alarm
sounded and the two men fled.
The above proof is more than sufficient for a reasonable juror to conclude
beyond a reasonable doubt that the defendant knowingly and unlawfully removed
Hazelrig from one location to another location so as to substantially interfere with his
liberty while the defendant was in possession of a deadly weapon. This issue is
without merit.
The judgment of the trial court is AFFIRMED.
_______________________ JOE G. RILEY, JUDGE
CONCUR:
_________________________ PAUL G. SUMMERS, JUDGE
6 _________________________ DAVID H. WELLES, JUDGE