State v. Sudderth
| Decision Date | 18 May 2004 |
| Docket Number | No. E2003-00333-CCA-R9-CD.,E2003-00333-CCA-R9-CD. |
| Citation | 152 S.W.3d 24 |
| Parties | STATE of Tennessee v. Reginald Stacy SUDDERTH. |
| Court | Tennessee Court of Criminal Appeals |
Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Reginald Stacy Sudderth.
Paul G. Summers, Attorney General and Reporter; Joseph F. Whalen, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin and Barry Staubus, Assistant District Attorneys General, for the appellee, State of Tennessee.
In 1998, the defendant, through former counsel, entered into a letter agreement with the Blount County District Attorney General which provided that he would be granted immunity for the murder of Andre Jackson if he provided information and cooperated in the prosecution of the murder of Gary Huskey and passed a polygraph examination administered by the Federal Bureau of Investigation ("FBI") as to the Huskey murder. The defendant subsequently was indicted for first degree murder and conspiracy to commit first degree murder. He then filed a motion to dismiss the indictment, claiming, inter alia, that the polygraph was unfair, that he had not failed the test, and that the State breached its agreement to provide another polygraph. Following hearings, the trial court denied the motion, and the defendant filed an interlocutory appeal. After review, we affirm the judgment of the trial court denying the motion, but remand for entry of corrected minutes reflecting that the trial court denied the defendant's motion to dismiss.
The sole issue presented by this appeal is whether the trial court erred in concluding that the State did not breach an immunity agreement which it had entered into with the defendant, thus allowing the State to proceed in the indictment that is the basis for this appeal. In making our determination, we first will review the chronology of the matter.
On April 7, 1998, Andre Jackson was murdered in Blount County, Tennessee. Through an attorney then representing him, the defendant entered into a letter agreement on April 9, 1998, with Michael Flynn, the Blount County District Attorney General, which recited that:
In exchange for complete and full immunity for [the defendant] for any charges related to the death of Andre Jackson, [the defendant] will do the following:
1. Provide all information he has regarding the death of Gary Huskey, and cooperate in the prosecution of those charged with his slaying, including submitting to a polygraph and testifying truthfully in Court with regard to these matters.
2. Testify truthfully and consistently with the statement submitted to the Blount County Sheriff's Department with regard to the shooting of A.C. Copeland by David Brown.
It is also our agreement that the polygraph examination will be administered by the FBI and that if [the defendant] does not pass the polygraph examination, he will not be afforded the immunity referred to in paragraph one.
Although the technical record does not contain a copy of the defendant's motion to dismiss the indictment because of the alleged breach of the immunity agreement by the State, the appendix to his brief includes such a motion, designated as Defense Motion No. 1000, bearing the clerk's stamped date of July 9, 2001. The trial court's minutes of January 7, 2003, contained in the technical record and referring to this motion, recite that "the Court having considered and well understood the [Motion to Dismiss for Breach of Agreement of Immunity], said Motion is GRANTED." The minutes conflict with the trial court's oral ruling following the hearing, the court denying the motion, which resulted in this appeal.
On March 5, 2002, November 25, 2002, December 30, 2002, and January 7, 2003, the trial court conducted hearings on the defendant's motion to dismiss the indictment. At the March 5 hearing, the State announced to the court that former FBI Agent Arthur G. Richards, Jr., who had administered the polygraph to the defendant, had reviewed and rescored his charts earlier that morning "and found that actually the scores ... fell into an inconclusive category, as opposed to a deception category." The State then explained that the parties intended to arrange another polygraph by the FBI since the results of the defendant's first polygraph were "inconclusive." However, as we will explain subsequently, the FBI refused to retest the defendant, and the trial court continued to hold hearings on the motion.
The State's witness at the January 7, 2003, hearing, when the court heard testimony on the motion, was Arthur G. Richards, Jr., who had retired from the FBI in October 1998 and was then working as a private investigator and polygraph examiner. He said that he had administered a polygraph examination to the defendant on April 15, 1998, while still employed by the FBI. He questioned the defendant as to his knowledge of the murder of Gary Huskey and, during the examination, asked the "relevant" questions, "Did you hear A.C. — he smoked that white boy?" and "Did you see A.C. and Chris in the vicinity of Jackson Hills a few days prior to the incident?" As to the results of the polygraph, Richards explained that, although the charts "scored inconclusive," he scored the test as deceptive:
Now, when he was confronted with the results, and I don't remember whether I told him that he failed the test, I don't remember whether I told him that he had problems with the test, which are two phrases that I sometimes use after a person does not successfully complete a test, or if I asked him for his explanation of why he didn't do well on the test.
He told me that he did not remember the specific phraseology. Now — and that the statement that he smoked that white boy, he says that just from the totality of what ... A.C. Copeland told him, he had the impression that ... he killed him.
Now, before I asked him that question on the ... polygraph examination, when I was in the process of reviewing the questions, I told him because he had ... admitted before the actual test that he didn't remember the exact questions or the exact statement that A.C. made, and I told him, I said, "Well, look, polygraph is not designed for intent — type questions and it's not designed for `do you believe' and that sort of thing." I said, "Did he say it or not?" And he said, "Yes, he said it." He said... "A.C. said he smoked that white boy." So I said okay.
And that's what I asked him on the polygraph examination, and then when he was confronted in the fact he did not pass the test, he said that, "Well, I don't remember the exact phraseology, but it was my impression that ... he was admitting to the murder."
Richards explained that he had scored the defendant's responses as "deceptive" because of "the FBI's administrative rules with regard to a person changing their statement." As to the defendant's actual score itself, Richards said that it was "inconclusive," meaning that "he did not pass" the polygraph test.
On cross-examination, Richards said that the actual scores given to the defendant on the polygraph were "zero plus two or zero plus one ... and plus one, plus two." He agreed with defense counsel's statement that an inconclusive test result occurred when the test questions did not properly identify the relevant issue and that following such a result, the subject often is retested. He said that the FBI policy was that if the test results showed "deception," the subject would not be retested, but a retest would occur if the results were inconclusive. He was not asked to retest the defendant. He said that he "probably" scored the results as deceptive, rather than inconclusive, because of FBI policy.
The first defense witness at the hearing was the attorney who had represented the defendant at the time the immunity agreement was entered into, which occurred on April 9, 1998, with the Blount County District Attorney General. He said that he had accompanied the defendant to the polygraph examination and was told by Detective James Widener of the Blount County Sheriff's Department that they intended to question the defendant about the death of Andre Jackson, which surprised him. Counsel believed that the questioning was to be "[a]bout Gary Husk[e]y and what [the defendant] knew about statements made about Gary Husk[e]y's death." They then telephoned the District Attorney General who had executed the agreement, who confirmed it was expected the defendant would be questioned only about the death of Gary Huskey. Counsel explained this to the defendant, who left with Agent Richards for the polygraph examination. About an hour later, the defendant telephoned and told him that he was being asked "about everything under the sun," including whether he was a drug dealer, what he knew about drugs, about "what happened with Andre Jackson," and other matters. Counsel then spoke again with Agent Richards, who agreed to limit questioning to the death of Gary Huskey. Afterwards, he talked with the defendant, who told him that it had been a "setup" and that "because of the — something about the irregularity of it or the inconclusiveness of it, ... another [polygraph examination] would be scheduled." Counsel said that he later received a telephone call from the District Attorney General's office and was told that another polygraph test would not be given to the defendant because "he had already had a polygraph."
James L. Widener testified that he was a detective and a polygraph examiner with the Blount County Sheriff's Department. He said that if an inconclusive result occurred on a polygraph that he gave, he would administer another examination, but not on the same day. He said that an inconclusive result was not the same as passing the...
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