FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE May 28, 1998 FEBRUARY 1998 SESSION Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9703-CC-00100 ) vs. ) Giles County ) WILLIAM RONALD JORDAN, ) Hon. William B. Cain, Judge ) Appellant. ) (Attempted Robbery, DUI)
FOR THE APPELLANT: FOR THE APPELLEE:
SHARA ANN FLACY (at trial and on appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
WILLIAM C. BRIGHT DARYL J. BRAND Asst. District Public Defender Asst. Attorney General P.O. Box 1208 425 Fifth Ave. North Pulaski, TN 38478-1208 Cordell Hull Bldg., 2d Floor Nashville, TN 37243-0493 GREGORY D. SMITH (on appeal) Attorney at Law T. MICHAEL BOTTOMS One Public Sq., Ste. 321 District Attorney General Clarksville, TN 37040 RICHARD H. DUNAVANT Asst. District Attorney General P.O. Box 304 Pulaski, TN 38478-0304
OPINION FILED:___________________
AFFIRMED
CURWOOD WITT, JUDGE OPINION
The defendant, William Ronald Jordan, appeals following his
convictions of attempted robbery and driving under the influence. He received his
convictions in the Giles County Circuit Court after a jury trial. He is presently
incarcerated in the Department of Correction serving his effective six year sentence
consecutively to his sentence for a previous conviction. In this direct appeal, Jordan
claims that the trial court erroneously failed to instruct the jury on the affirmative
defense of renunciation and that he was denied a speedy trial. Having reviewed the
briefs and arguments of the parties, the record, and the applicable law, we find no
reversible error and affirm the judgment of the trial court.
At trial, the state presented the testimony of Billy Kennedy, a loan
officer of the Bank of Frankewing. On May 23, 1994, one of the tellers escorted the
defendant to Kennedy's office. The defendant inquired about obtaining a loan, and
Kennedy filled out a loan application for the defendant and said he would have an
answer the following day. During his encounter with the defendant, Kennedy
smelled alcohol. The defendant left Kennedy's office and started across the bank
lobby Kennedy saw the defendant get a piece of paper out of his pocket then
proceed to a teller window. The defendant stood at the teller window for a few
minutes, then left the bank. Thereafter, Kennedy learned from the teller that the
defendant had given her “a holdup note” and observed the defendant drive away
in a blue Ford Escort station wagon. He obtained the license plate number and
provided this information to law enforcement. Kennedy found a piece of that note
where the defendant’s car had been parked.
Sue Coggins testified the defendant came to her teller window and
gave her a folded up note. She opened the note, and it said the defendant wanted
money and would kill her if she did not cooperate. The note scared Coggins;
2 nevertheless, she said she did not "have any." The defendant said, "Don't have any
what?" Coggins told the defendant he would have to see one of the loan officers.
She either gave the note back to the defendant or laid it down, and the defendant
took it and walked out of the bank. Coggins smelled alcohol on the defendant.
Deputy Kyle Helton of the Giles County Sheriff's department
apprehended the defendant about 45 minutes after the attempted robbery. At the
time Helton stopped the defendant, Jordan was on a private road headed toward
a public roadway. Helton noticed a strong smell of alcohol on the defendant's
breath and observed that the defendant was unsteady on his feet. Jordan was
unable to successfully complete two field sobriety tests. Thereafter, Jordan
registered .22 on an intoximeter test.
Special Agent Robert Childs of the FBI and Investigator Michael
Chapman of the Giles County Sheriff's Department interviewed the defendant. On
May 24, 1994, Jordan told Agent Childs and Investigator Chapman that he had
attended a picnic at a rock quarry two days earlier. The next day, which was the
day of the attempted robbery, he returned to the rock quarry and drank whiskey and
beer with the quarry owner, Steve Houston. The defendant was "wild on booze"
and could not remember clearly. He claimed to be an alcoholic with memory loss.
However, he told Chapman and Childs that sometime in the afternoon he went to
the Bank of Frankewing and applied for a loan. He had no recollection of the
attempted robbery or the robbery note. He did not recall talking with anyone other
than a loan officer.
Agent Childs spoke with the defendant a second time, on June 2,
1994. During the time between April 24 and May 2, the defendant conferred with
counsel but requested the conference with Agent Childs that occurred on May 2.
3 Jordan claimed that he had known Steve Houston in his past. He and Houston
were becoming reacquainted around May 23. On the day of the attempted robbery
Houston and Jordan were drinking at the rock quarry. Jordan told Houston about
spending time in jail for bank robbery. Houston did not believe this, so Jordan went
to his car and wrote a note like the one he had used in robbing a bank in Nashville.
The note said, "This is a robbery. Give me all your bills. I don't want to see no dye
bomb or see you push no alarm or I'll kill you. You now have 15 seconds." Jordan
messed up while writing this note and threw it in the quarry. He borrowed a piece
of paper and wrote another note. He showed it to Houston then put it in his pocket.
Later a man and woman at the quarry whose names the defendant did not recall
went with the defendant to the bank. The man drove the defendant's car, and the
woman followed in another car. The man had something to do, and the couple left
the defendant and his car at the bank. The defendant went inside the bank and
talked with the loan officer. Afterwards, he approached a teller and asked her for
a roll of quarters. He had a $10 bill in the same pocket as the robbery note he had
shown Houston, and he mistakenly gave the teller the note instead of the $10 bill.
When the defendant realized what he had done, he snatched the note away from
the teller and left the bank. On his way back to the quarry, he tore up the note and
threw it out the window after he turned off the highway. The defendant claimed a
piece of the first robbery note must have fallen out of the car when he exited the car
at the bank.
Agent Childs testified that he not been able to locate "Steve Houston."
He had, however, interviewed Houston Lewis Smith, the owner of the rock quarry.
Investigator Michael Chapman recalled seeing the defendant in the
jail lobby sitting by the intoximeter machine on May 23. He could tell the defendant
had been drinking, although the defendant appeared coherent.
4 Houston Lewis Smith testified for the prosecution. He saw the
defendant on the day of the attempted robbery and the two previous days. The
defendant was drinking on May 24. Smith noticed that the defendant left the rock
quarry in the afternoon in his vehicle, and he returned about 20 to 30 minutes later.
Smith heard that the bank had been robbed by an individual driving a car like the
defendant's, and he called the Sheriff's Department to report the defendant's
presence on his property. In stark contradiction to the defendant's statement, Smith
said the defendant never told him about a robbery in Nashville or showed him a
robbery note.
The defendant did not testify and offered as his only witness Carolyn
Sue Watson, a teller at the Bank of Frankewing. She recalled the defendant
coming into the bank asking to speak with a loan officer. She could smell liquor on
his breath, and he was mumbling. She took him to Mr. Kennedy's office. Later,
when Jordan left Kennedy's office, W atson saw him stop and look for something in
his pocket or billfold. He took out something white. As he was standing at Coggins'
teller window, she heard him say "You don't have any what?" or something similar.
She did not hear Jordan ask Coggins for a roll of quarters. Watson also did not see
any physically threatening behavior from the defendant, such as display of a
weapon or grabbing Coggins.
The court denied the defendant's requested instruction on the defense
of renunciation as to the attempted robbery charge. Thereafter, the jury returned
guilty verdicts on both the DUI and attempted robbery charges.
I
First, Jordan claims the trial court should have given his requested
instruction on renunciation. In support of his argument, he points to the fact that
5 when Coggins told him she had no money, he "quietly left" the bank rather than
proceeding further. The state counters that Jordan failed to fairly raise the issue by
presenting any proof of renunciation and that, therefore, the court had no obligation
to submit a renunciation instruction. Specifically, the state claims the defendant's
act of leaving when he failed to complete the act of robbery is insufficient
renunciation of his crime.
Renunciation is an affirmative defense. Tenn. Code Ann. § 39-12-104
(1997). In order for a defendant to avail himself of an affirmative defense at trial,
he must "fairly raise" it, Tenn. Code Ann. § 39-11-204(d) (1997), and he must
establish it by a preponderance of the evidence. Tenn. Code Ann. § 39-12-104,
Sentencing Comm'n Comments (1997). But see State v. Jackson, 946 S.W.2d 329,
332 (Tenn. Crim. App. 1996) (renunciation must be raised by a preponderance of
the evidence) (emphasis added) (Smith, J., concurring), perm. app. denied (Tenn.
1997). In making its determination whether an affirmative defense such as
renunciation has been "fairly raised" by the evidence and therefore requires the
appropriate jury instructions, see Poe v. State, 212 Tenn. 413, 370 S.W.2d 488
(1963), the trial court "must assess the defendant's position without ascertaining its
truthfulness or the weight to which it might be entitled." State v. Ivy, 868 S.W.2d
724, 726 (Tenn. Crim. App. 1993) (citations omitted); see also State v. Shropshire,
874 S.W.2d 634, 639 (Tenn. Crim. App. 1993); State v. Dorie Miller Currin, No.
02C01-9201-CC-00018, slip op. at 7 (Tenn. Crim. App., Jackson, Aug. 26, 1992).
In pertinent part, renunciation "is an affirmative defense to a charge
of criminal attempt. . . [where the defendant], after committing the criminal attempt
. . . prevented the successful commission of the offense attempted . . . under
circumstances manifesting a complete and voluntary renunciation of the
[defendant's] criminal purpose." Tenn. Code Ann. § 39-12-104 (1997). The
6 Sentencing Commission Comments further illustrate the situation in which the
defense will apply: (1) the defendant must prevent successful completion of the
ultimate offense, and (2) he must voluntarily renounce the criminal purpose. Tenn.
Code Ann. § 39-12-104, Sentencing Comm'n Comments (1997).
The defendant's second statement provides proof of each element of
renunciation. The defendant is charged with criminal attempt, one of the crimes to
which the defense applies. There is evidence the defendant prevented the
successful completion of the crime attempted and that he did so under
circumstances manifesting his complete and voluntary renunciation of his criminal
purpose. According to Agent Childs's testimony, the defendant stated that he
accidentally gave Teller Coggins the robbery note instead of a $10 bill. When the
defendant realized what he had done, he panicked, snatched the note and left the
bank. Viewing this evidence without regard to its apparent veracity or its proper
weight, it fairly raises the defense of renunciation.1 Objectively, this evidence might
be used by a jury to determine that the defendant thwarted his attempted robbery
by grabbing the note and leaving, thereby preventing successful completion of the
offense, and further, his actions were voluntary in repudiating the attempted
robbery. Cf. Jackson, 946 S.W.2d at 332 (jury properly instructed on renunciation
where defendant stabbed his girlfriend and waited for her to die, but then changed
his course of action and summoned medical help for her) (Smith, J., concurring),
perm. app. denied (Tenn. 1997).
We are not unmindful that the defendant's statement from which this
1 In so holding, we reject the state's argument that the defendant's act of merely leaving because he failed to complete the offense was insufficient renunciation. On the contrary, the evidence favoring the defendant is that he did more than simply leave the bank. He claims he snatched the robbery note from Teller Coggins, which in the light most favorable to him could be interpreted as an affirmative disavowal of the crime.
7 version of events comes is inconsistent with his previous statement, wherein he
claimed to have no memory of any events at the bank other than seeing the loan
officer. Further, the testimony of the witnesses is inconsistent with the defendant's
statement as recounted by Agent Childs. Nevertheless, we are bound to follow the
law and hold that the proof “fairly raised” the affirmative offense of renunciation.
Additionally, although the issue was not addressed by the trial court
or raised by the parties on appeal, we notice that the facts presented at trial also
"fairly raise" the general defense of mistake of fact. Mistake of fact is a defense if
it "negates the culpable mental state of the charged offense." Tenn. Code Ann. §
39-11-502 (1997). In the case at bar, the defendant's evidence which we have held
"fairly raised" the defense of renunciation likewise fairly raises the defense of
mistake of fact. Specifically, Jordan claimed in his second statement to have
accidentally given the robbery note, rather than a $10 bill, to Teller Coggins. If the
facts are as he alleged, they would negate the culpable mental state necessary for
attempted robbery.
When a general defense is "fairly raised," the state must disprove its
applicability beyond a reasonable doubt. Tenn. Code Ann. §§ 39-11-203(c), (d),
-201(a)(3) (1997); State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994).
The trial court has the duty to give the jury a complete charge of the applicable law
as to "every issue of fact raised by the evidence and material to [the] defense[.]"
State v. Stoddard, 909 S.W.2d 454, 460 (Tenn. Crim. App. 1994); see, e.g., Poe,
212 Tenn. at 420, 370 S.W.2d at 491.
Having found error in the trial court’s failure to instruct the jury on
renunciation and the general defense of mistake, we turn to the issue of whether
these errors require reversal. We are convinced that no rational jury could conclude
8 by a preponderance of the evidence that the defendant renounced his crime. See
Tenn. Code Ann. § 39-11-204(e) (1997). Further, we believe the only conclusion
a rational jury could draw from the totality of the proof is that the state disproved any
mistake of fact defense beyond a reasonable doubt. The defendant’s statement in
which he sets forth his version of events is inconsistent with his previous statement,
wherein he claimed to have no memory of any events at the bank other than seeing
the loan officer. The testimony of each and every witness is inconsistent in some
material respect to the defendant’s second statement. Moreover, the trial court’s
failure to instruct on either renunciation or mistake does not affirmatively appear to
have affected the result of the trial. As such, the trial court’s failure to give the
instructions was harmless error beyond a reasonable doubt. Tenn. R. App. P.
36(b); Tenn. R. Crim. P. 52(a); cf. State v. Manning, 500 S.W.2d 913 (Tenn. 1973)
(failure to give alibi instruction was, at worst, harmless error in face of the state’s
strong proof of defendant’s guilt as compared with defendant’s uncorroborated alibi
evidence).
II
In the remaining issue, Jordan claims he was denied his right to a
speedy trial. The United States and Tennessee constitutions guarantee the criminal
defendant the right to a speedy trial. U.S. Const. amends. XI and XIV; Tenn. Const.
art. I, § 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997); State v. Jefferson, 938
S.W.2d 1, 11 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). The right to a
speedy trial is also statutory in Tennessee. See Tenn. Code Ann. § 40-14-101
(1997). In addition, the Tennessee Rules of Criminal Procedure provide for the
dismissal of an indictment, presentment, information or criminal complaint "[i]f there
is unnecessary delay in presenting the charge to a grand jury against a defendant
who as been held to answer to the trial court, or if there is unnecessary delay in
bringing a defendant to trial . . . ." Tenn. R. Crim. P. 48(b).
9 Neither the constitutional provisions, the statute nor the rule defines
the period of time in which the accused must be brought to trial or the case
dismissed, or the precise point at which the clock starts to run. The United States
Supreme Court has held that "no speedy trial rights arise until after formal
accusation, either by arrest or by grand jury action." United States v. Marion, 404
U.S. 307, 320, 92 S. Ct. 455, 463 (1971). Recently, the Tennessee Supreme Court
decided that the issuance of an arrest warrant, by itself, is not enough to trigger the
protection of the Sixth Amendment right to a speedy trial. Utley, 956 S.W.2d at 493.
Either a formal grand jury action or the actual restraints of an arrest are required.
Utley, 956 S.W.2d at 493.2
When an accused seeks the dismissal of a prosecution based upon
the denial of the constitutional right to a speedy trial, the accused must establish a
period of delay that is "presumptively prejudicial."3 Jefferson, 938 S.W.2d at 12
(citing Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992));
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). The length of the
delay is dependent upon the peculiar circumstances of each case, and the delay
that can be tolerated for "an ordinary street crime" is generally much less than for
a serious, complex felony charge. Barker, 407 U.S. at 530-31, 92 S. Ct. at 2193.
A delay of one year or longer marks the point at which courts deem the delay
unreasonable enough to trigger further inquiry. Utley, 956 S.W.2d at 494; Doggett,
2 Presumably, although it is not clear in Utley, an arrest alone will not trigger an accused’s speedy trial rights. As we understand Utley, neither an arrest nor an arrest warrant is sufficient by itself. An arrest warrant must issue and the restraints of an arrest must be imposed before the speedy trial clock begins to tick. See Utley, 956 S.W.2d at 494 (right triggered when accused was served with the warrant and arrested). 3 The term "presumptively prejudicial" does not imply that the defendant is automatically entitled to relief. Rather, it refers to a delay sufficiently egregious to require analysis under the balancing test of Barker v. Wingo, 407 U.S. 524, 92 S. Ct. 2182 (1972). See Utley, 956 S.W.2d at 494.
10 505 U.S. at 652, n.1, 112 S. Ct. at 2691, n.1; see also State v. Ernest Vickers, III,
No. 02C01-9609-CC-00313, slip op. at 7 (Tenn. Crim. App., Jackson, July 3, 1997),
perm. app. denied (Tenn. 1998); State v. Terron Bledsoe, No. 02C01-9508-CC-
00226, slip op. at 3 (Tenn. Crim. App., Jackson, July 3, 1997), perm. app. denied
(Tenn. 1998).
If this threshold is crossed, a balancing test determines the merits of
the speedy trial issue. In State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973), our
supreme court recognized and adopted the balancing test set forth in Barker v.
Wingo. The four factors which must be balanced are (1) the length of the delay, (2)
the reasons for the delay, (3) the accused's assertion of the right to speedy trial, and
(4) the prejudice resulting from the delay. Barker, 407 U.S. at 531, 92 S. Ct. at
2192; Bishop, 493 S.W.2d at 83-84.
In the case before us, the offenses occurred on May 23, 1994. The
defendant was arrested on May 23, 1994 for DUI, and a second arrest warrant was
issued the following day, May 24. Indictments were filed on August 1, 1994. The
defendant filed a pro se motion for speedy trial on October 10, 1994.4 He filed a pro
se motion to dismiss based upon deprivation of his right to a speedy trial on March
13, 1995. Counsel was appointed shortly before arraignment in June 1995. The
motion to dismiss was denied following a hearing on July 24, 1995. The trial began
on August 8, 1995.
The delay of more than one year between arrest and trial in this case
warrants application of the Barker balancing test. First, the length of the delay is
4 At the hearing on the motion to dismiss, the defendant contended there was some delay in filing this motion. Through counsel, he claimed to have mailed the motion in September 1994.
11 long enough to trigger further analysis, but it is not egregious. We weigh this factor
in favor of the state. Second, we weigh the reason for the delay slightly in favor of
the defendant. The defendant claimed the delay was due to the state's negligence
but offered no proof. The state offered no explanation for the delay. We glean from
the record that the defendant was in state custody during the delay because his
parole on an earlier offense had been revoked. Nevertheless, there is nothing of
record except the delay itself which is probative of the state's negligence. Third, the
defendant made an early assertion of his right to a speedy trial. This factor weighs
in his favor. Finally, we decline to find prejudice from the delay. 5 The defendant
was incarcerated for another conviction prior to his trial in this case. He alleged in
his motions that he suffered administrative deprivations in the Department of
Correction because of his pending charges; however, he elected to present no proof
in that regard at the hearing. See Utley, 956 S.W.2d at 495. Further, he claimed
an allegedly exculpatory witness died during the delay. According to the
defendant's pleadings, this witness died in December 1994. We note that the
defendant's crimes occurred approximately seven months earlier. Even if this case
had not been delayed slightly, the witness would have in all likelihood been dead
prior to trial. Additionally, Jordan presented no actual proof of this witness' death
or substance of his anticipated testimony. We assign significant weight to the fourth
Barker factor in favor of the state.
On balance, we agree with the trial court that the defendant is not
entitled to dismissal of the charges against him due to a deprivation of his right to
a speedy trial.
In summary, we affirm the judgment of the trial court.
5 This is the most important of the four factors. State v. Wood, 924 S.W.2d 342, 348 (Tenn. 1996) (citations omitted).
12 _______________________________ CURWOOD WITT, JUDGE
CONCUR:
_____________________________ GARY R. WADE, PRESIDING JUDGE
_____________________________ WILLIAM M. BARKER, JUDGE