State v. Thorpe

• Decision Date: 17 September 1980
• Docket Number: No. 657,657
• Citation: 614 S.W.2d 60
• Parties: STATE of Tennessee, Appellant, v. Darrell THORPE, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 60

614 S.W.2d 60

STATE of Tennessee, Appellant, v. Darrell THORPE, Appellee.

No. 657

Court of Criminal Appeals of Tennessee, at Knoxville.

Sept. 17, 1980.

Gordon W. Smith, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., D. Vance Martin, Kim A. Tollison, Asst. Dist. Attys. Gen., Knoxville, for appellant.

Ralph E. Harwell, Randall E. Nichols, Knoxville, for appellee.

OPINION

DAUGHTREY, Judge.

The State appeals from the trial court's dismissal of a three-count presentment charging the defendant, Darrell Thorpe, with contracting to fix a criminal case (count one), fixing a criminal case (count two), and conspiracy to fix a criminal case (count three). In dismissing the presentment, the trial court found that counts one and two were barred by the relevant statute of limitations, and that count three was fatally defective because it failed to allege any overt act accomplished in the furtherance of the conspiracy. The State challenges the validity of this ruling, as well as the trial court's authority to dispose of the case on the basis of agreed stipulations of fact. We conclude that the trial court's determination was legally correct, and we thus affirm the judgment entered below.

The presentment was returned by the Knox County Grand Jury on June 11, 1979, charging Thorpe as follows:

The Grand Jurors for the State of Tennessee upon their oaths, present That DARRELL THORPE, ALIAS, a professional bondsman, acting for himself and as agent for Volunteer Bonding Company, did on diverse days between January 19, 1978 and the date of the finding of this Presentment, did unlawfully negotiate, transact, deal and agree with Clell Ownby, a person charged with the offense of Driving Under the Influence of an Intoxicant, Tennessee State Warrant Number 32429, in the General Sessions Court for Knox County, Tennessee, a criminal offense and in violation of the criminal statutes of the State of Tennessee; and did charge, demand, and contract for; accept, collect, and receive a sum of money, a fee, compensation, and consideration from Clell Ownby directly upon the said DARRELL THORPE, ALIAS promise, offer, representation, and holding out through inducement that the said DARRELL THORPE, ALIAS, a professional bondsman and agent for Volunteer Bonding Company, could and would attempt to effect, procure, bring about, arrange, and fix the disposition, dismissal, and compromise of the said Driving Under the Influence of an Intoxicant charge and prosecution aforementioned, against the said Clell Ownby and that the said DARRELL THORPE, ALIAS, could and would attempt to stop, prevent, construct, impede, interfere with, retard, and delay the prosecution of the Driving Under the Influence of an Intoxicant charge against the said Clell Ownby, in violation of Tennessee Code Annotated, Section 40-1407 and against the peace and dignity of the State.

SECOND COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that DARRELL THORPE, ALIAS, a professional bondsman, and while acting as agent for Volunteer Bonding Company, did on diverse days between January 19, 1978 and the date of the finding of this Presentment, in the State and County aforesaid, with the intent, purpose and design of effecting, procuring, bringing about, arranging for and fixing the disposition and compromise and prosecution of a Driving Under the Influence of an Intoxicant charge against Clell Ownby, a person charged with the offense of Driving Under the Influence of an Intoxicant, Tennessee State Warrant Number 32429 in General Sessions Court for Knox County, Tennessee, by advising and stopping, preventing, obstructing, impeding, interfering with, regarding and delaying the prosecution of the said Driving Under the Influence of an Intoxicant charge against Clell Ownby by unlawfully, falsely and fraudulently instructing the said Clell Ownby not to appear for the trial on the date set on State Warrant Number 32429, and did fraudulently arrange for and fix the disposition and did compromise the prosecution of the said Driving Under the Influence of an Intoxicant charge against Clell Ownby by allowing a Final Judgment Upon Forfeiture of the Bond on the said Clell Ownby to be entered by the said General Sessions Court for Knox County, Tennessee; and the said DARRELL THORPE, ALIAS, did thereby fraudulently prevent, obstruct, impede, interfere with, retard and delay the prosecution and the processes of law in respect thereof, of the said Driving Under the Influence of an Intoxicant charge against Clell Ownby, in violation of Tennessee Code Annotated, Section 40-1409 and against the peace and dignity of the State.

THIRD COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that DARRELL THORPE, ALIAS, a professional bondsman acting for himself and as agent for Volunteer Bonding Company, did on diverse days between January 19, 1978 and the date of the finding of this Presentment, in the State and County aforesaid, unlawfully and corruptly did conspire with Clell Ownby and other to the Grand Jurors unknown, each acting in concert with the other, to obstruct justice and the due administration of the law, in violation of Tennessee Code Annotated, Section 39-1101; that is to say, that the said DARRELL THORPE, ALIAS, did corruptly conspire with Clell Ownby and other to the Grand Jurors unknown each acting in concert with the other, to obstruct justice and the due administration of the law by corruptly conspiring, planning and agreeing to procure the dismissal, reduction and disposition, other than as provided by law in such cases, of a case pending in the General Sessions Court of Knox County, Tennessee, styled State of Tennessee v. Clell Ownby, Docket No. 32429, wherein the said Clell Ownby was charged with the offense of Driving Under the Influence of an Intoxicant, contrary to the Statute and against the peace and dignity of the State.

At the pretrial hearing on Thorpe's motion to dismiss, an agreed two-part "stipulation" was entered on the record. It consisted of two exhibits, each setting out the offering party's understanding of the evidence to be presented at trial. Thus, the prosecution's portion of the "stipulation" amounted to a summary of the facts which the Assistant District Attorney anticipated proving at trial.

On appeal, the State first asserts that the trial judge committed error by relying upon the above-described factual stipulations as a basis for his ruling on the defendant's motion to dismiss. The State maintains that a motion to dismiss an indictment or a presentment may only be granted in cases in which the instrument is defective on its face and that no "extraneous" evidence may be relied upon for the purpose of establishing an infirmity.

It is true that prior to the advent of the Tennessee Rules of Criminal Procedure, a motion to squash could be granted only in cases in which the defect appeared on the face of the indictment. As our Supreme Court stated in McKeldin v. State, 516 S.W.2d 82 (Tenn.1974):

Under Tennessee criminal procedure an indictment may be attacked by Motion to Quash only where the defect appears upon the face of the indictment. Where it is invalid for any other reason, the extraneous matter must be presented by Plea in Abatement (citations omitted)....

McKeldin, supra, at 83.

Since McKeldin, however, the distinction between motions to quash and pleas in abatement has been eliminated. In 1975 the legislature amended T.C.A. § 40-2301, by deleting that section and substituting in its stead the following:

The defendant may, in all criminal cases, enter a motion to dismiss the indictment or presentment where the indictment or presentment is defective for any other reason not appearing on its face. There shall be no requirement to swear to the motion, but it shall state in clear and concise terms the defects alleged. All motions to quash and pleas in abatement filed in criminal cases shall be treated as motions to dismiss. The motion to dismiss shall be entered before the entry of a plea of not guilty or guilty, but the trial court may allow a motion to dismiss subsequent to a plea of not guilty or guilty where justice requires it.

Acts 1975, ch. 129, § 1.

T.C.A. § 40-2301 was subsequently replaced by the Tennessee Rules of Criminal Procedure, Rule 12(a) and (b). ¹ It is clear, however, that Rule 12(a) has precisely the same effect as the former T.C.A. § 40-2301:

...All other pleas, and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

This interpretation of the rule is also bolstered by the Committee Comment to Rule 12, which notes that "(t)he all-encompassing motion to dismiss was substantially implemented by the 1975 amendment to T.C.A. § 40-2301."

As the former motion to quash and plea in abatement are clearly combined in the present motion to dismiss, it is equally clear that the consideration by the trial court of "extraneous" evidence beyond the face of the presentment was proper in the instant case. The State's position on this issue is therefore without merit.

The language in each of the three counts of the presentment against Thorpe reads as follows:

(Thorpe) ... did on diverse days between January 19, 1978 and the date of the finding of this Presentment ...

Thus the presentment alleges that Thorpe committed the various crimes "on diverse days" between January 19, 1978, and June 11, 1979.

The chronological stipulation which was made an exhibit on motion of the State reads as follows:

1-19-78 Clell Owenby arrested for DWI Warrant # 32429

1-20-78 $200 bond made by George Cash of Vol Bonding Co.

about

1-26-78 Paid Darrell Thorpe $222 to fix case # 32429

2-22-78 Owenby failed to appear in Court

2-23-78 Conditional forfeiture in...