State v. Johnson

• Decision Date: 26 May 2011
• Citation: 342 S.W.3d 468
• Parties: STATE of Tennesseev.Cedric JOHNSON.
• Court: Tennessee Supreme Court

342 S.W.3d 468

STATE of Tennessee

v.Cedric JOHNSON.

Supreme Court of Tennessee, at Memphis.

Nov. 4, 2010 Session.May 26, 2011.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney General, for the appellant, State of Tennessee.Claiborne H. Ferguson, Memphis, Tennessee, for the appellee, Cedric Johnson.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and SHARON G. LEE, JJ., joined.

This appeal involves the application of the mandatory joinder provisions in Tenn. R.Crim. P. 8(a)(1)(A). The defendant was charged with committing an aggravated robbery and was separately charged with initiating a false police report twelve hours later regarding his automobile that was somehow connected with the robbery. Approximately one month after he was indicted by a Shelby County grand jury for initiating a false police report, the defendant pleaded guilty to attempting to initiate a false police report. Thereafter, a Shelby County grand jury indicted the defendant for aggravated robbery. The defendant filed a motion in the Criminal Court for Shelby County seeking to dismiss the aggravated robbery indictment in accordance with Tenn. R.Crim. P. 8(a)(2) because the State had already prosecuted him separately on the initiation of a false police report charge. The trial court granted the defendant's motion, and the State appealed to the Court of Criminal Appeals. A divided panel of the Court of Criminal Appeals affirmed the trial court's judgment. State v. Johnson, No. W2008–01593–CCA–R3–CD, 2009 WL 4263653 (Tenn.Crim.App. Nov. 30, 2009). We granted the State's application for permission to appeal to address the application of Tenn. R.Crim. P. 8(a)(1)(A) to offenses arising from the same criminal episode. We have determined that the two offenses involved in this case were not part of the same criminal episode and, therefore, that the Court of Criminal Appeals erred by relying on Tenn. R. Crim P. 8(a)(2) to dismiss the aggravated robbery charge.

I.

On April 4, 2007, Di‘A Watkins was robbed by two men while he was walking near the intersection of Midland Avenue and Buntyn Street in Memphis. The two men, brandishing a firearm, demanded Mr. Watkins's shoes, cellular phone, and cash. After Mr. Watkins complied with their demands, his assailants struck him in the head and kicked him to the ground.

The following day, the Memphis Police Department received a telephone call from Cedric Johnson reporting that his 1999 Chevrolet Cavalier had been stolen. The officer who was dispatched to Mr. Johnson's residence interviewed Mr. Johnson in the presence of Mr. Johnson's mother. Mr. Johnson first told the officer that his automobile had been stolen from his girlfriend's house during the previous evening. His mother did not believe what Mr. Johnson had told the officer and began questioning him herself. Mr. Johnson tried several more times to convince his mother and the officer that his automobile had been stolen. Eventually, he conceded that he had loaned his automobile to a friend and that his friend had called to tell him that there was a problem with the automobile and to suggest that he report that the automobile had been stolen.

At this point, the officer suspected Mr. Johnson's automobile could have been used in a robbery. Because Mr. Johnson had admitted to lying about the theft of his automobile, the officer arrested him for initiating a false police report.¹

On April 6, 2007, Mr. Watkins viewed a photographic lineup that included a picture of Mr. Johnson. After Mr. Watkins identified Mr. Johnson as one of the persons who had robbed him two days earlier, the authorities arrested Mr. Johnson for aggravated robbery.² Mr. Johnson later gave a written confession to the robbery of Mr. Watkins.

On May 22, 2007, the Shelby County General Sessions Court conducted a preliminary hearing on Mr. Johnson's aggravated robbery charge. The general sessions court found sufficient probable cause, bound the case over to the Shelby County grand jury, and set Mr. Johnson's bail at $100,000. The preliminary hearing on the false police report charge was held on May 23, 2007. At that time, the general sessions court dismissed the false police report charge for lack of prosecution.

On December 11, 2007, the Shelby County grand jury indicted Mr. Johnson for initiating a false police report. On January 8, 2008, Mr. Johnson pleaded guilty to the lesser included offense of criminal attempt to make a false police report and received a one-year sentence.

The Shelby County grand jury indicted Mr. Johnson for aggravated robbery on January 15, 2008. Mr. Johnson moved to dismiss this indictment on April 11, 2008, arguing that the offenses of aggravated robbery and making a false police report were required to be consolidated in accordance with Tenn. R.Crim. P. 8(a)(1)(A) because they arose from the same conduct. Following a hearing on May 6, 2008, the Criminal Court for Shelby County filed an order on June 27, 2008, concluding that “it seems clear that the false report of the auto theft shortly after the commission of the aggravated robbery was part of the same criminal episode, though not the same conduct” and that “[t]hese two offenses should have been consolidated in the same indictment.” Accordingly, the trial court dismissed the aggravated robbery indictment against Mr. Johnson.

The State appealed from the dismissal of the aggravated robbery indictment. The majority of the Court of Criminal Appeals panel that heard the case acknowledged that the two offenses were separated by both time and place and that “the two offenses do not necessarily involve proof of each other.” State v. Johnson, No. W2008–01593–CCA–R3–CD, 2009 WL 4263653, at *8–9 (Tenn.Crim.App. Nov. 30, 2009). Nevertheless, the majority affirmed the dismissal of the aggravated robbery indictment based on its belief that doing so was required by Tenn. R.Crim. P. 8(a)'s policy of “avoid[ing] piecemeal litigation.” State v. Johnson, 2009 WL 4263653, at *9 (quoting State v. Baird, 88 S.W.3d 617, 621 (Tenn.Crim.App.2001)).

Judge Alan Glenn filed a dissenting opinion. State v. Johnson, 2009 WL 4263653, at *9–11 (Glenn, J., dissenting). Judge Glenn disagreed with the majority's decision that the two offenses arose out of the same criminal episode because (1) either crime could be prosecuted without proof of the other and (2) one of the offenses—the aggravated robbery—had been completed before the other offense had begun. State v. Johnson, 2009 WL 4263653 at *10–11 (Glenn, J., dissenting).

We granted the State's application for permission to appeal to determine whether Tenn. R.Crim. P. 8(a)(1)(A) required that the two offenses committed by Mr. Johnson be consolidated for trial. We have determined that the majority of the Court of Criminal Appeals erred by finding that Mr. Johnson's initiating a false police report offense and aggravated robbery offense were part of the same criminal episode.

II.

The parties agree that all the facts relevant to the issues in this case are undisputed. Thus, this case involves solely the proper application of Tenn. R.Crim. P. 8 to the undisputed facts. Issues regarding the construction and interpretation of rules of court, including the Tennessee Rules of Criminal Procedure, involve questions of law. See Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004); Green v. Moore, 101 S.W.3d 415, 418 (Tenn.2003). Therefore, we review the lower courts' construction of the rules de novo with no presumption of correctness, State v. Ferrante, 269 S.W.3d 908, 911 (Tenn.2008), using essentially the same rules of construction that courts employ to construe statutes. State v. Crowe, 168 S.W.3d 731, 744 (Tenn.2005).

III.

The principles regarding joinder and severance of criminal offenses for trial are relatively undeveloped because “relatively few criminal cases go to trial” and because “neither the prosecution nor the defense has developed a consistent institutional position with respect to joinder and severance.” ³ Both the prosecution's and the defendant's decisions regarding joinder and severance are influenced by a range of practical and tactical factors, including the merits of the individual cases, the readiness of the cases for trial, the “defendant's right to a fair trial before an impartial jury (uninfluenced by evidence of other offenses),” the cost and delay of multiple trials, and the desire to resolve all the charges with dispatch. ⁴ Accordingly, as the ABA Standards for Criminal Justice point out:

If prosecutors and defendants have difficulty deciding whether joinder or severance is more advantageous in a particular case, it is not surprising that judges have difficulty in evolving and articulating standards or rules for resolving the conflicts that occur when the prosecution and defense reach opposite conclusions in the same case.2 ABA Standards for Criminal Justice, at 13.5.

Early on, the prevailing view—animated by the belief that trial courts were charged with safeguarding the rights of both the prosecution and the defendant—left decisions regarding the consolidation of charges, even charges involving separate and distinct crimes, to the sound discretion of the trial court.⁵ These discretionary decisions were rarely overturned. State v. Shirley, 6 S.W.3d 243, 245–46 (Tenn.1999). However, a minority of states, including Tennessee,⁶ held that charges involving separate and distinct crimes—not arising out of the same or related acts or not provable by the same evidence—should not be consolidated over the defendant's objection. ⁷

The principles governing the joinder or consolidation of offenses were codified in the Tennessee Rules of Criminal Procedure, which first became effective on July 13, 1978.⁸ Currently,...