State v. Sammons

• Citation: 656 S.W.2d 862
• Decision Date: 24 May 1982
• Docket Number: Nos. 761 and 772,s. 761 and 772
• Parties: STATE of Tennessee, Appellee, v. Michael Lee SAMMONS, Appellant. 656 S.W.2d 862
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 862

656 S.W.2d 862

STATE of Tennessee, Appellee, v. Michael Lee SAMMONS, Appellant.

Nos. 761 and 772.

656 S.W.2d 862

Court of Criminal Appeals of Tennessee,

at Knoxville.

May 24, 1982.

Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Stephen M. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for appellee.

David Haines Rotroff, Mitchell Berger, of counsel, Chattanooga, for appellant.

OPINION

DAUGHTREY, Judge.

The defendant-appellant, Michael Lee Sammons, was found guilty of three counts of kidnapping a child under the age of 16, for which he received a sentence of one to five years imprisonment on each count. He was also found guilty of first degree burglary and was given an additional five to ten year sentence on this charge. All four convictions arose from the kidnapping of the defendant's daughter, Tiffany Dawn Sammons, on three separate occasions in 1979 and 1980. The defendant was acquitted of a related charge of extortion.

On direct appeal from criminal court, Sammons raises multiple issues for our review. His principal insistence is that he was subjected to double jeopardy when he was cited for contempt in circuit court and was subsequently convicted in criminal court on charges growing out of the same transaction. Immediately after judgment was entered in criminal court, Sammons filed a petition for writ of habeas corpus in circuit court alleging that he was being held in violation of his constitutional rights under the double jeopardy clause. That action was dismissed on the technical ground that a habeas corpus action may not be substituted for a direct appeal. We have previously ordered the two cases consolidated for purposes of review by this court, because the same issue is presented by both appeals.

In addition to the double jeopardy question, Sammons also challenges the sufficiency of the convicting evidence and takes issue with the validity of procedures utilized in selecting the jury that heard his case, the denial of both a change of venue and a severance, certain evidentiary rulings by the trial judge, the introduction of a pretrial statement Sammons made to Canadian immigration authorities, and the trial court's consecutive sentencing order. After a review of the record, we find that the defendant is entitled to limited relief in this case, as set out below.

In July 1978, Michael Sammons and Karen Grant (Sammons), then a medical student, obtained a divorce. An Arkansas court awarded Karen Grant the custody of the couple's two-year-old child, Tiffany Dawn Sammons, and the parties agreed that the defendant would have visitation privileges with Tiffany every other weekend, one evening per week, alternate holidays, and for two weeks during the summer. A problem ¹ developed with the defendant's exercise of his visitation rights, and he was thereafter permitted to be with Tiffany only in the presence of a court deputy or other guard.

After Karen Grant finished medical school in June 1979, she moved with her three-year-old child to Chattanooga, where she was scheduled to undertake a medical residency at a local hospital. Soon after this move, the defendant petitioned the Hamilton County court for a change of custody. On July 2, 1979, pending a hearing on the custody petition, the court granted Sammons limited visitation rights with his daughter. At 9:00 A.M. on Saturday July 7, the defendant arrived at Dr. Grant's apartment and took Tiffany for the first visit under the new visitation arrangement.

That night Sammons stayed at a local motel. The next morning he called police to report that his daughter was "missing." Although the defendant maintained at the time that Tiffany had disappeared without his knowledge, he admitted at trial that he had arranged for her disappearance and that later that day he took her to Dallas, Texas, where he was then residing.

A few days later, Sammons called his ex-wife. He still professed not to know where the child was, but told Dr. Grant that if she would agree to joint custody, Tiffany would "show up." Under these conditions, Dr. Grant executed a joint custody agreement and sent it to Sammons, who signed and returned it. In the meantime, Sammons was indicted in Chattanooga for kidnapping and extortion. He voluntarily returned to Chattanooga, where he was cited for contempt in the custody matter and was ordered to jail until he returned the child. Eventually word came that Tiffany could be found in Las Vegas, and Dr. Grant's mother, Betty Grant, flew to Las Vegas, retrieved the child, and brought her back to Chattanooga. The court then released Sammons on a $250,000 bond.

On September 27, 1979, two Kinder-Care teachers spotted the defendant and another man watching the children in the Kinder-Care playground. Tiffany was there at the time and became upset when she saw her father. Three days later, the defendant checked into a Chattanooga hotel and rented a car. That night, when Karen Grant and her mother put Tiffany to bed, they left her bedroom window open about an inch. Tiffany had trouble sleeping, and Mrs. Grant was up with her at 2:00 A.M. At 7:00 A.M. the next morning, Dr. Grant noticed that the door to Tiffany's room was closed. This was unusual, but Dr. Grant thought her mother had closed the door so that Tiffany could sleep late. It was not until 8:30 A.M., after Dr. Grant had left for the hospital, that Mrs. Grant discovered that Tiffany was missing. Her window was wide open, and a picture in the room had been knocked lopsided. The screen to the window was later found lying on the ground outside.

Karen Grant had no word of her child until December 1979, when she received some recent pictures of Tiffany in the mail. In January 1980, a man Dr. Grant did not know telephoned her and put Tiffany on the line. Tiffany told her mother she was in California. Eventually Dr. Grant was able to secure information about Sammons's whereabouts from this man, who turned out to be a Las Vegas private detective. Through this information Sammons and the child were traced to Toronto, Canada.

On January 24, 1980, Canadian immigration authorities found the defendant and the child living in a Toronto suburb. Sammons was using a false name and had given false information in order to obtain a student authorization to live in Canada. He was arrested; he waived deportation; and he was turned over to FBI agents in Buffalo, New York. Dr. Grant went to Buffalo to get Tiffany. Shortly thereafter, the defendant posted bond in Erie County, New York, and then failed to appear for a scheduled hearing.

On May 26, 1980, just two days short of her granddaughter's fourth birthday, Betty Grant was preparing to take Tiffany to the child care center when she heard a muffled cry outside the apartment and discovered that the child had again been abducted. A neighbor saw the defendant carry Tiffany away from the apartment and heard her cries for her mother.

Seven months later, in January 1981, Florida authorities found the defendant and Tiffany in a Ramada Inn in Manatee County. ² At this point, the defendant was using the name Gregg Ballard and was in possession of fake identification for himself and for "Tiffany Ballard." He told Florida authorities that he had taken Tiffany from her mother on a total of five occasions. He also said that if he got out of this "jam," he was going to remove Tiffany from the country permanently.

At trial, Sammons admitted taking Tiffany on the three occasions described above. He maintained, however, that he did not enter the Grant apartment on October 1, 1979. He claimed that at 7:30 that morning he drove by and noticed that Tiffany's bedroom window was open. He said he walked up to the window and began to speak to her, promising to take the three-year-old to Disneyland. He testified that he merely helped the child out of the window, and he denied seeing a screen on the window or on the ground below it.

The defendant does not seriously contest the sufficiency of the evidence to sustain the kidnapping convictions, with one exception. He alleges that on July 7, 1979, he did not take Tiffany unlawfully but with permission for a prearranged visit. However, his willful failure to return the child as scheduled is a sufficient "taking" within the meaning of T.C.A. Sec. 39-2602.

Sammons also attacks his conviction for first degree burglary, first on the ground of general insufficiency of the evidence, and, second, on the specific basis of failure to prove that the offense, if any, occurred in the night time. Although we think the physical evidence is sufficient to make out a case of breaking and entering the Grant apartment with felonious purpose, we cannot say that the proof is sufficient to prove that the burglary occurred during non-daylight hours. We therefore find it necessary to reduce the defendant's conviction from first to second degree burglary and to adjust the sentence accordingly.

After Sammons was arrested in Florida and returned to Hamilton County, the circuit judge before whom his original petition for change of custody was pending held him in contempt for "removing the minor child of the parties on three occasions ... in violation of the orders of this Court...." The court sentenced Sammons to a six month jail term, but three weeks later, following Sammons's motion to dismiss pending criminal charges on the basis of double jeopardy, the judge who entered the contempt order attempted to rescind it. (This subsequent order noted, among other things, that the sentence for contempt was useless because Sammons was already being held without bond on the criminal charges.)

In treating the defendant's double jeopardy claim, we note first that the circuit court judge who found him in contempt had no authority to impose a six month sentence. Although T.C.A. Sec. 36-835 authorizes incarceration of up to six months for failure to follow a support order, the only contempt power conferred upon the trial court for infractions of visitation...