State v. Singleton

• Decision Date: 03 May 1993
• Citation: 853 S.W.2d 490
• Parties: STATE of Tennessee, Appellant, v. James A. SINGLETON, Appellee.
• Court: Tennessee Supreme Court

Page 490

853 S.W.2d 490

STATE of Tennessee, Appellant, v. James A. SINGLETON, Appellee.

Supreme Court of Tennessee at Knoxville.

May 3, 1993.

Charles W. Burson, Atty. Gen. & Reporter, Rebecca L. Gundt, Asst. Atty. Gen., Nashville, for appellant.

R. Jackson Rose, Cumberland Gap, for appellee.

OPINION

DAUGHTREY, Justice.

We granted review in this case at the state's request, in order to review a ruling by the Court of Criminal Appeals allowing the trial court to force unwilling police witnesses to submit to pretrial interviews with defense counsel.

The defendant, James "Jap" Singleton, was convicted of selling marijuana to four undercover police officers. The Court of Criminal Appeals reversed the conviction, finding that the trial court had prejudiced the defendant by refusing to grant him interviews with the state's only witnesses, the undercover agents. As relief, the intermediate court then granted the defendant a new trial based on newly discovered evidence seriously impeaching the testimony of the officers. Although we reverse the court's holding that a trial court may order unwilling police witnesses to submit to interviews, we nevertheless remand the case to the trial court for a new trial on the basis of the newly discovered evidence--or, more accurately, "newly relevant evidence."

This case was initiated by the return of a presentment nine months after the alleged marijuana sale took place. The defendant was not afforded a preliminary hearing and thus had no opportunity to glean information about the state's case against him through formal proceedings. His attorney attempted to interview the police officers prior to trial, but the officers refused to discuss the case. After a jury was selected, defense counsel requested a continuance and a court-ordered opportunity to interview the officers in order to prepare his defense. The court denied the request, and the defendant went to trial without knowing the extent of the state's case against him.

At trial, two of the four agents involved in the undercover operation testified to Singleton's participation in the sale of marijuana. According to the agents, after a man named Melvin Dunaway initially sold them a small amount of marijuana at a Grainger County truck stop, they asked to buy a larger amount. Dunaway then conversed with the defendant and Randy Lane, the co-defendant, out of the agents' hearing. The officers testified that Singleton handed Lane a set of keys and that Lane then took the agents to the defendant's truck, where he got the marijuana that he sold to them. After the sale, Lane returned inside the truck stop and allegedly handed Singleton his keys. The handing of the truck keys to Lane and the presence of the marijuana in his truck was the only evidence linking Singleton to the sale.

The defendant's witnesses, however, denied Singleton's involvement in the sale. Co-defendant Randy Lane testified that Singleton knew nothing about the sale and, furthermore, that the defendant's truck lacked keys. Another defense witness, Johnny Cooper, testified that he had driven Singleton and Lane to the truck stop that night, and that Singleton's truck operated without keys. Because defense counsel could not have anticipated the agents' testimony about the handing off of keys, he offered no independent evidence at trial to contradict this crucial testimony linking the defendant to the sale.

In his motion for a new trial, the defendant not only claimed that there was insufficient evidence to convict him, he asserted that the state should not have been able to use the testimony of the officers who had refused to give him pretrial interviews. He also moved for a new trial on the basis of newly discovered evidence in the form of several affidavits verifying the nonexistence of keys to his truck. Hobart Bunch, a used car salesman, swore by affidavit that he sold the truck to its former owner without keys. In another affidavit this former owner stated that the truck operated without a key and that she sold the truck to the defendant without a key. Finally, the defendant submitted a copy of a police warrant noting that the truck ran without a key. The defendant argued that this newly discovered evidence warranted a new trial because it undermined the officers' testimony to such an extent that a new jury would likely acquit him.

The trial judge, although dubious about the strength of the evidence to support the conviction, denied the motion for a new trial. On appeal, the Court of Criminal Appeals reversed the trial court's judgment and held that the defendant was entitled to a new trial on the basis of the newly discovered evidence. The intermediate court also held that the officers should have been forced to submit to pretrial interviews. In a departure from current Tennessee law, the court held that

... trial courts may, in their discretion, order law enforcement officers to submit to a pretrial interview by the defense, as to unprivileged information, once it can be either established that the defense has exercised reasonable diligence in its unsuccessful attempts to obtain facts essential to the preparation of its case or established that such attempts would be futile.

The intermediate court also conditioned the granting of such interviews on the defendant's reasonable expectation that the witness would have the knowledge sought, on the materiality of the information sought, and on there being no other reasonable means of obtaining the information. Finding that the officers' refusal to talk to defense counsel prejudiced the defendant in the preparation of his case, the Court of Criminal Appeals remanded for a new trial on this ground as well.

The Court of Criminal Appeals based this ruling on State v. McDevitt, 297 A.2d 58 (Del.Super.Ct.1972), a lower court case from Delaware that appears to be the only authority for allowing defense counsel the right to interview police witnesses. Relying on McDevitt, the Court of Criminal Appeals cited the courts' inherent power to govern discovery and the special duties of police officials as reasons for permitting courts to order interviews with unwilling police officers. But, a close reading of McDevitt indicates that in reaching this conclusion, the Delaware court was merely following the dicta of another Delaware case, Wisniewski v. State, 51 Del. 84, 138 A.2d 333 (1957), which held that it was improper for the state to prohibit a witness from talking with defense counsel. Wisniewski assumed in dicta that courts have the inherent power to order witnesses to discuss the facts of cases with counsel, but that question was not before the court for determination.

It is now before us, and we conclude that a rule permitting trial courts to order police witnesses to speak to defense counsel would be a significant and unwarranted departure from the current state of Tennessee law. For example, the Tennessee Rules of Criminal Procedure lack a mechanism to force prospective witnesses to discuss their testimony with counsel before trial. Rule 15 of the Tennessee Rules of Criminal Procedure narrowly restricts the availability of depositions in criminal cases, reserving their use to "exceptional circumstances," when the "interest of justice" requires that a deposition be taken to preserve the testimony of a prospective witness who is unlikely to be able to testify at trial. The Committee Comment to the Rule reflects the drafters' intention "to make it clear that depositions are not meant to function as discovery devices in criminal cases." Likewise, there is nothing in Rule 16, governing pretrial "discovery and inspection," that could be taken to authorize court-ordered interviews with otherwise unwilling witnesses.

Tennessee case law, moreover, gives a prospective witness the discretion to talk--or not to talk--to either counsel, as the witness sees fit. Of course, the law also provides that counsel may not instruct a witness not to discuss the facts of a case with opposing counsel. In Gammon v. State, 506 S.W.2d 188, 190 (Tenn.Crim.App.1974), the Court of Criminal Appeals restated the well-recognized principle that

[p]rospective witnesses are not partisans, and they should be regarded as spokesmen for the facts as they see them. Because they do not 'belong' to either party, a prosecutor, defense counsel or anyone acting for either should not suggest to a witness that he not submit to an interview by opposing counsel.

In this case, the defendant does not allege that the state violated Gammon by instructing the officers not to speak to defense counsel. As long as Gammon is not violated,

[a] defendant is entitled to have access to any prospective witness although such right of access may not lead to an actual interview. * * * [A]ny witness has the right to refuse to be interviewed, if he so desires (and is not under or subject to legal process). * * * The importance of the rights of access is somewhat tempered by the witness'[s] equally strong right to refuse to say anything.

See also United States v. Scott, 518 F.2d 261, 268 (6th Cir.1975); United States v. Munsey, 457 F.Supp. 1, 4 (E.D.Tenn.1978). In Munsey, the Sixth Circuit Court of Appeals explained that "witnesses are neither the property of the government nor of the defendant, but ... a witness is free to talk with a lawyer for the adversary party or not talk with such counsel." Munsey, 457 F.Supp. at 4.

This rule has a long common law heritage. Common law provided no right to discovery depositions. Minder v. Georgia, 183 U.S. 559, 22 S.Ct. 224, 46 L.Ed. 328 (1902). The United States Supreme Court has held that a state's denial of the right to discovery in a criminal case is not a denial of due process or equal protection. Id. In light of this history, the Federal Rules of Criminal Procedure, like Tennessee's Rules, permit depositions only to preserve testimony for trial. See Fed.R.Crim.P. 15; United States v. Rich, 580 F.2d 929 (9th Cir.), cert....