Moore v. State

• Decision Date: 05 March 1979
• Citation: 578 S.W.2d 78
• Parties: Carolyn Tramill MOORE et al., Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 78

578 S.W.2d 78

Carolyn Tramill MOORE et al., Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

March 5, 1979.

J. Fred Friedman, Memphis, for petitioners.

Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Hugh Stanton, Jr., Dist. Atty. Gen., James W. Harrison, Asst. Dist. Atty. Gen., Memphis, for respondent.

OPINION

HENRY, Chief Justice.

This is another case involving a construction of the somewhat nebulous provisions of § 40-1131, T.C.A. While the entire section is involved, we are particularly concerned with the limitations set forth in the last sentence of the second paragraph.

This issue arose in a case in which criminal defendants were indicted during a continuance of their preliminary hearing, but more than thirty (30) days after their initial arrest.

In sustaining a plea in abatement the trial judge held that the 30 day limitation began to run in this case upon the defendants' arrest pursuant to capias. The Court of Criminal Appeals reversed, holding that the time began to run on the date of initial arrest on warrant. We granted certiorari to construe the somewhat troublesome and ostensibly ambiguous language of this statute.

While we do not agree with the trial judge in holding that the time limitation begins to run with arrest on capias, neither do we agree with the Court of Criminal Appeals that the limitation of the statute demands, without qualification, and under all circumstances, that a criminal defendant loses his statutory right to a preliminary hearing, through no fault of his own, and by virtue of the passage of time alone. Accordingly, we reverse.

I. Procedural Background

Petitioners were arrested on or about June 1, 1975, on an arrest warrant, issued after the execution of a search warrant.

Three versions of what transpired at the preliminary hearing on June 11, 1975 appear in the record. All are consistent.

Counsel for petitioners, by affidavit, says that he appeared in General Sessions Court for the purpose of participating in the preliminary hearing. Under his version:

They were arrested pursuant to a Search Warrant . . . authorizing a search for a defendant male white known as "Chickenhawk" who is five (5) feet eleven (11) inches tall, 165 pounds, medium build and brown hair. The officer who executed the Search Warrant and was in a position to testify personally to the material facts was not present or available. Counsel objected to hearsay testimony. The Court was displeased. The Attorney General threatened to have the matter taken to the Grand Jury pending the preliminary hearing. The matter was reset as best I recall until December of this year; the date is not clear. A preliminary hearing was demanded, and the matter was submitted to the Grand Jury While the preliminary hearing was being continued. (Emphasis supplied)

The Assistant District Attorney General's version corroborates counsel for petitioners:

The preliminary hearing was continued till June the 11th, 1975. At that time The State attempted to put on hearsay proof. Mr. Friedman objected. There was a disagreement between the Judge, Judge Stinson and Mr. Friedman, As to the sufficiency of the evidence at the preliminary hearing, at which point The case was reset indefinitely according to what our proof will show. Subsequently to that, on October 7, 1975, these two defendants were indicted. . . . (Emphasis supplied)

The trial judge's finding, specifically verified by the Assistant District Attorney General (A)ccording to the affidavit, of Mr. Friedman's, that they were taken before Judge Stinson. Even though their names were not on the search warrant, they were arrested by the officers who executed the search warrant and evidently were charged with an offense. And . . . Mr. Friedman at that time . . . Demanded a preliminary hearing. And the Attorney General threatened to have the matter taken to the Grand Jury pending the preliminary hearing. And he did in fact do that. The Judge granted a continuance in the case and While the preliminary hearing was pending, the case was taken before the Grand Jury.

Am I correct about that Gentlemen?

The Assistant District Attorney General answered in the affirmative and then addressed the court, making the representation heretofore quoted along with others.

Six facts are clear from this record:

First, the petitioners were arrested on warrants.

Second, they demanded a preliminary hearing.

Third, the State sought to present hearsay testimony.

Fourth, Counsel for petitioner objected.

Fifth, the case was continued indefinitely.

Sixth, during the continuance, petitioners were indicted.

Thus the posture of the case was that they had no reason for a motion to abate until the 30-day limitation technically had expired. Petitioners were indicted on October 7, 1975. Capias was issued on October 8, 1975 and served on October 9, 1975. They filed their motions to grant a preliminary hearing and/or to abate the indictment on October 10, 1975, one day after service of the capias and two days after indictment.

Under these circumstances, the trial judge abated the indictment and remanded to the General Sessions Court for a preliminary hearing. The Court of Criminal Appeals reversed.

II.

Sec. 40-1131, T.C.A.

This section, at all times pertinent to this inquiry, read as follows:

In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused 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 accused 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 his own request or that of the prosecutor, he may abate the indictment upon motion to the Court. PROVIDED, HOWEVER, THAT NO SUCH MOTION FOR ABATEMENT SHALL BE GRANTED AFTER THE EXPIRATION OF THIRTY (30) DAYS FROM THE DATE OF ACCUSED'S ARREST. (Underscored matter was deleted by Ch. 760, Acts of 1976; capitalization is for emphasis)

It is settled law in this jurisdiction that while a preliminary hearing is not constitutionally required, it is a critical stage of a criminal prosecution mandated by statutory law, and is an adversary proceeding at which the usual rules of evidence apply. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Waugh v. State, 564 S.W.2d 654 (Tenn.1978); McKeldin v. State, 516 S.W.2d 82 (Tenn.1974).

It is equally well settled that a preliminary hearing is mandated only in those cases wherein the defendant has been arrested with or without a warrant and is not a demandable right where the prosecution originated by presentment or indictment. It is the prerogative of the District Attorney General and law enforcement personnel to omit the arrest procedure and take prosecutions directly to the grand jury. Vaughn v. State, 557 S.W.2d 64 (Tenn.1977); Harris v. State, 534 S.W.2d 868 (C.C.A.Tenn.1975).

The first paragraph of § 40-1131, T.C.A. originated in Chapter 245, Acts of 1971. It mandates a preliminary hearing irrespective of the convention of the grand jury. The same act repealed Chapter 16 of the Acts of 1899, appearing as Section 11575 in Williams Tennessee Code and in the Code Supplement of 1950 as § 40-402 (original volume), which provided, in substance, that if the grand jury was in session the justice of the peace could only try the case upon a plea of guilty. Absent such plea he could only take bond pending an investigation by the grand jury. Thus § 40-1131, T.C.A. was intended to insure that a criminal defendant obtain a preliminary hearing, without regard to grand jury sessions.

The second paragraph of § 40-1131, T.C.A. simply provides a mechanism for the enforcement of a right to a preliminary hearing. It is the last sentence that creates the difficulty:

Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused's arrest.

When consideration is given to the context of this section, and to its historic purpose, the word "arrest" must be construed to mean a conventional arrest, with or without a warrant and prior to indictment. To construe this to mean and include arrest on capias does violence not only to the plain intent of the statute and its manifest purpose, but also to our statutory scheme wherein a capias serves a specified and unique purpose.

Under our criminal procedure, a capias is a mesne or intermediate process having the sole purpose of securing the presence of the defendant. When a defendant has been arrested, and placed in jail or released on bond, and bound to the grand jury, no process is necessary to bring him in following an indictment. It is only when he is not in actual custody, or on bond, or on his own recognizance, or when bail has been forfeited, or recognizance has been revoked, or there is a void or voidable bond, that a capias issues. §§ 40-1901, 40-1902, T.C.A. Thus a capias may or may not issue following indictment.

The effect of holding that the words "arrest" and "capias" are synonymous would be to place defendants on a different legal footing, depending upon the issuance of a capias.

But this does not end the inquiry.

The statute articulates loudly and clearly the public policy of this state that a preliminary hearing is mandatory without regard to the convention of the grand jury. To accomplish this purpose it provides for an abatement if an indictment is returned during the period of time in which the preliminary hearing is being continued, or before a defendant has been afforded a preliminary hearing. However, it further provides that no...