State v. Easterly

• Decision Date: 28 September 2001
• Docket Number: No. E2000-02625-CCA-R9-CO.,E2000-02625-CCA-R9-CO.
• Citation: 77 S.W.3d 226
• Parties: STATE of Tennessee v. Robert L. EASTERLY.
• Court: Tennessee Court of Criminal Appeals

77 S.W.3d 226

STATE of Tennessee v.Robert L. EASTERLY.

No. E2000-02625-CCA-R9-CO.

Court of Criminal Appeals of Tennessee, at Knoxville.

September 28, 2001. No Permission to Appeal Applied for to the Supreme Court.

Wade V. Davies, Knoxville, TN, for appellant, Robert L. Easterly.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District Attorney General, for appellee, State of Tennessee.

OPINION

WITT, J., delivered the opinion of the court, in which WEDEMEYER, J., joined and TIPTON, J., did not participate.

In this interlocutory appeal, Robert L. Easterly challenges the Knox County Criminal Court's order denying his motion to dismiss a presentment against him.Easterly claims that the state is barred from prosecuting him for the offense charged in the presentment because (1)the case was not joined with a prior prosecution of him in Sevier County, (2) the criminal conduct charged in the presentment is the same offense for double jeopardy purposes as the case in which he was convicted in Sevier County, and (3) the delay in commencement of the Knox Countyprosecution violates his speedy trial and due process rights.Because we agree with the defendant that both the mandatory joinder rule and double jeopardy principles bar dual prosecutions, we reverse the trial court's order and dismiss the presentment.

On March 13, 1998, an undercover agent of the Tennessee Bureau of Investigation called the defendant, Robert L. Easterly, at his Knox County home and requested that he bring a quantity of cocaine to Sevier County for the agent's purchase.The defendant agreed and did so.The agent met with the defendant inside the defendant's car, and the two discussed cocaine.The defendant was then detained.He refused to allow law enforcement officials to search his Knox County residence, so they obtained a search warrant.Upon its execution, officials discovered a large quantity of cocaine inside the house.The defendant was arrested, although the record does not reflect whether his arrest was pursuant to the Sevier County transaction, the Knox County possession, or both.¹

Thereafter, the defendant was charged in Sevier County on June 1, 1998 by presentment.²Counsel was appointed.On February 16, 1999, the defendant pleaded guilty to possession with intent to sell or deliver one-half gram or more of cocaine for the March 13, 1998 incident in Sevier County.Two days later, a presentment was returned in Knox County charging the defendant with possession with intent to sell more than 300 grams of cocaine and possession with intent to deliver more than 300 grams of cocaine.³These charges relate to the cocaine discovered in the defendant's home on March 13, 1998.The defendant was sentenced in Sevier County on March 29, 1999 to an eight-year sentence.The court imposed the manner of service as ten months in the local jail and the remainder in the Community Corrections program.

Sometime after sentencing, defense counsel learned that the Tennessee Bureau of Investigation had contacted the defendant about the Knox County presentment.Defense counsel spoke with a Knox County assistant district attorney on April 6, 1999, and the assistant confirmed that the Knox County Grand Jury had returned a presentment against the defendant.The assistant district attorney was unable to provide counsel with a copy of the sealed presentment, however.Defense counsel told the assistant district attorney that the defendant would turn himself in early to begin serving his Sevier County conviction and requested that the defendant be served at the Sevier County Jail with the capias for the Knox County presentment.Defense counsel claims that the assistant district attorney agreed to this arrangement.The assistant district attorney testified at a Knox Countymotion hearing that he agreed to "try" to have the capias served on the defendant in the Sevier County Jail.Nevertheless, the capias remained unserved, and defense counsel sent a letter to the assistant district attorney on June 17, 1999 advising him of that fact.

In any event, after the defendant completed serving his Sevier County confinement, he was transferred to Knox County detention.He was arraigned on March 3, 2000, and the presentment was finally served.The same attorney who had represented the defendant in his Sevier County case was appointed to represent him in Knox County.

Defense counsel moved to dismiss the Knox County presentment on the basis of violation of the mandatory joinder rule of Tennessee Rule of Criminal Procedure 8(a), violation of double jeopardy principles, and unreasonable delay in the prosecution violating speedy trial and due process principles.Following a hearing, the trial court denied the motion, finding that the delay in "the process of serving" the Knox County presentment was not "unreasonable or intentional ... nor... for the purpose of denying Mr. Easterly his rights."The court also ruled that the Sevier and Knox County offenses "were brought in separate counties, hence they could not have been brought in the same jurisdiction to the same court."The court reasoned that, although it was "a very close call," the fact that the alleged offenses took place in two different counties defeated mandatory joinder and double jeopardy concerns.(Emphasis in original.)

On the defendant's application, the trial court granted permission to appeal its order pursuant to Tennessee Rule of Appellate Procedure 9.This court accepted the application, and the case is now before us for disposition.

We address the defendant's issues in the following order.First, do double jeopardy principles bar the Knox Countyprosecution?Second, does Rule 8(a) of the Tennessee Rules of Criminal Procedure require that the Knox County and Sevier County offenses be joined in a single prosecution?Third, were the defendant's speedy trial and due process rights violated by unreasonable delay?As will be explained below, we answer the first two questions affirmatively and, therefore, reverse the trial court's order and dismiss the Knox County presentment.

I—Double Jeopardy

Constitutional provisions protect a person from more than once being placed in jeopardy of conviction of a crime.U.S. Const. amends V, XIV;Tenn. Const. art I, § 10.For offenses to support multiple convictions, they must be "wholly separate and distinct."See, e.g., State v. Goins,705 S.W.2d 648, 650(Tenn.1986).The defendant in this case claims that his possessory conduct in Sevier County and his possessory conduct in Knox County constitute but one culpable course of conduct and cannot form the basis for separate prosecutions.

There are two basic scenarios involving multiple convictions which raise double jeopardy concerns.First, a single course of conduct may be proscribed by two or more different statutes and charged under more than one of these statutes.See, e.g., State v. Denton,938 S.W.2d 373(Tenn.1996).Second, a defendant may engage in a criminal episode that violates only one statute but is charged as multiple counts under that statute.See, e.g., State v. Phillips,924 S.W.2d 662(Tenn.1996).The scenario presented in the case at bar is the latter.That is, the defendant engaged in a course of criminal conduct which the state charged as multiple violations of the same statute.Our task is to determine whether double jeopardy principles permit multiple prosecutions and punishments in this instance.SeeState v. Barney,986 S.W.2d 545(Tenn.1999)(applyingDentonandPhillips inquiries to double jeopardy question).

The seminal case for double-jeopardy analysis of multiple count, same statute crimes is Phillips.That was a sex-offense case, and its inquiry is specific to that type of crime.See generallyPhillips,924 S.W.2d 662.Its principles, however, have been adapted for other types of crimes, as well.See generallyState v. Epps,989 S.W.2d 742, 745(Tenn.Crim.App.1998).Those principles are:

1.A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution;

2.If each offense charged requires proof of a fact not required in proving the other, the offenses are not multiplicitous; and

3.Where time and location separate and distinguish the commission of the offenses, the offenses cannot be said to have arisen out of a single wrongful act.

Id. at 745(quotingPhillips,924 S.W.2d at 665).Other matters to be considered are "the nature of the act; the time elapsed between the alleged conduct; the intent of the accused, i.e., was a new intent formed; and cumulative punishment...."Id. at 745.None of these factors other than the nature of the act is determinative.Id.

In advancing its argument that double jeopardy does not prohibit multiple prosecutions in the case at bar, the state claims that the evidence of the two crimes is different because the Sevier County possession involved a relatively small quantity of cocaine for the purpose of sale, whereas the Knox County possession involved a large quantity of cocaine stored in a residence.We acknowledge that the evidence of the two offenses is not identical, but the Knox and Sevier Counties offenses appear very much to be a division of a single wrongful act.The defendant possessed a large amount of contraband, which he stored in his home.Although he separated part of it for the purpose of selling it in Sevier County, the state induced him to do so and has now attempted to prosecute him separately for the cocaine he possessed in one location until the state's inducement.The nature of the act for which the defendant was prosecuted in both cases—that is, possession—is the same for both offenses.The defendant was simultaneously in possession of the cocaine he kept in his home in Knox County and the subdivided portion he took to ...