State v. Todd

• Decision Date: 13 June 1983
• Citation: State v. Todd, 654 S.W.2d 379 (Tenn. 1983)
• Parties: STATE of Tennessee, Appellant, v. Mike TODD, Appellee.
• Court: Tennessee Supreme Court

Page 379

654 S.W.2d 379

STATE of Tennessee, Appellant, v.Mike TODD, Appellee.

Supreme Court of Tennessee at Jackson.

June 13, 1983.

Opinion on Petition to Rehear

July 25, 1983.

Gordon W. Smith, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., and Reporter, Nashville, for appellant.

George Morton Googe, Jackson, for appellee.

OPINION

COOPER, Justice.

In this appeal the state challenges the holding of the Court of Criminal Appeals that defendant's second degree murder conviction violated the constitutional prohibition against double jeopardy.The conviction was from the death of defendant's nineteen month old stepson which resulted from a head injury inflicted by defendant.

Defendant was indicted for second degree murder.An agreement was entered with the state in which defendant was to plead guilty to voluntary manslaughter with a sentence of not less than three years or more than ten years.The plea agreement, defendant's motion that the plea be accepted, and a recommendation by the district attorney that the charge be reduced to voluntary manslaughter because of the state's inability to prove malice were submitted to the trial court.The trial judge announced that he had read the submitted documents and would "go along with reduction of the sentence to voluntary manslaughter, but ... not with the punishment on plea negotiation."

After renegotiation the plea was resubmitted with a recommended punishment of four to ten years, the statutory maximum for voluntary manslaughter.T.C.A. §§ 39-2-222,40-20-107(a).The judge still considered the tendered punishment to be unacceptable.When he was informed that the proffered punishment was the maximum permitted by law the judge rejected the plea agreement and ordered defendant to stand trial for second degree murder.

During the plea hearing the judge had signed an order reducing the charge against defendant to voluntary manslaughter.The order was not entered on the minutes of the court, but was given to the district attorney general and the trial judge "turn[ed] the whole thing down."On the day of the trial, the defendant moved to have the district attorney general file the order so that it could be included in and made a part of the record in this cause.Several months later, and after defendant's notice of appeal had been filed, the trial judge granted the motion and entered an order nunc pro tunc as of the trial date.

Defendant insisted, and the Court of Criminal Appeals agreed, that he had been placed in jeopardy on the voluntary manslaughter charge and could not thereafter be tried for second degree murder.The court held that the trial judge accepted defendant's plea to the voluntary manslaughter charge when he ordered the charge reduced.While we agree that acceptance of defendant's plea on the manslaughter charge would be tantamount to a conviction ( seeBrooks v. State, 187 Tenn. 67, 213 S.W.2d 7, (1948)) and would bar defendant's subsequent prosecution on the greater second degree murder charge ( seeBrown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187(1977)).We cannot agree that the trial court accepted defendant's plea.

The double jeopardy provision of the federal and state constitutions protects a defendant against reprosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656(1969).The policy of the provision is that the state should not be permitted to utilize all of its power and resources in repeated attempts to convict a defendant of the same offense, subjecting him again to the "embarrassment, expense and ordeal" of trial as well as the increased risk of conviction.Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199(1957).To raise a double jeopardy objection it is fundamental that a defendant must have been previously placed in jeopardy on the charge, Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265(1975);Delay v. State, 563 S.W.2d 905, 906(Tenn.Cr.App.1977).Without the risk of a determination of defendant's guilt, jeopardy does not attach so that an appeal or further prosecution constitutes double jeopardy.Serfass420 U.S. at 391-92, 95 S.Ct. at 1064.Where one is in direct peril of being convicted and punished a second prosecution is barred.Green, 355 U.S. at 190, 78 S.Ct. at 225.

Mere arraignment and pleading does not place a defendant in jeopardy.Bassing v. Cady, 208 U.S. 386, 391-92, 28 S.Ct. 392, 393, 52 L.Ed. 540(1908).See alsoUnited States v. Martin Linen Supply Co., 485 F.2d 1143, 1147, cert. denied, 415 U.S. 915, 94 S.Ct. 1412, 39 L.Ed.2d 470(5th Cir.1973).Jeopardy only attaches when a defendant is put to trial before the trier of fact.United States v. Patrick, 532 F.2d 142, 145(9th Cir.1976).Thus, a court may receive evidence on and determine preliminary matters without jeopardy attaching.Patrickat 146;United States v. Hill, 473 F.2d 759, 763(9th Cir.1972).The mere "entry of a plea of guilty in and of itself is not a bar to a subsequent prosecution for the same or higher offense without some judicial action upon the plea."State v. Sluder, 493 S.W.2d 467, 470(Tenn.)cert. denied, 414 U.S. 876, 94 S.Ct. 85, 38 L.Ed.2d 121(1973).If the rule were otherwise jeopardy would attach at every Mackey hearing and the court would be bound to accept every plea agreement submitted to it.SeeState v. Mackey, 553 S.W.2d 337(Tenn.1977).The double jeopardy provision, however, makes a verdict of acquittal final and nonreviewable even though based on an erroneous foundation.Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629(1962);United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300(1895).Acquittal is final and bars reprosecution although not followed by judgment.Green, 355 U.S. at 188, 78 S.Ct. at 223.There can be no acquittal, however, until jeopardy attaches.United States v. Lasater, 535 F.2d 1041, 1047(8th Cir.1976).

Jeopardy attaches in a jury case when a defendant is put to trial before a court of competent jurisdiction, upon a sufficient indictment and the jury is impaneled and sworn.Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 3(1947).In a nonjury trial, as in this case, jeopardy attaches

when a defendant is placed on trial (1) on an indictment, presentment (or other charging instrument), (2) before a court of competent jurisdiction, (3) before a competent judge who is present and ready to sit as a trier of the facts, (4) after a valid waiver is executed by the defendant, (5) after the entry of his plea, and (6) after the witnesses are sworn, whether they be sworn singly or in a group.

State v. Daniels, 531 S.W.2d 795, 801(Tenn.Cr.App.1975).Where these factors are present hearing testimony is not required for jeopardy to attach.Daniels.The question presented here is whether a defendant is "placed on trial" in a plea hearing prior to the court's acceptance of the plea.

By a plea agreement a defendant admits commission of the specified offense and consents to entry of a conviction and receipt of the agreed upon punishment without a trial.The trial judge may accept or reject the plea agreement in the exercise of his discretion.Tenn.R.Crim.P. 11;Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427(1971).If the agreement is accepted the terms of the agreement become binding and enforceable.See Santobello.If the plea agreement is rejected the judge must give the defendant an opportunity to withdraw his guilty plea.Tenn.R.Crim.P. 11(c)(4).One valid reason for rejecting a plea agreement is that the proposed sentence is considered too lenient under the circumstances.United States v. Munroe, 493 F.Supp. 134, 136(E.D.Tenn.1980).While plea bargaining may be mutually advantageous to a defendant and the state ( seeBrady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970), a prerequisite to the effectiveness and enforceability of a plea agreement is its approval by the court.SeeMetheny v. State, 589 S.W.2d 943, 945(Tenn.Cr.App.1979)cert. denied, 445 U.S. 967, 100 S.Ct. 1658, 64 L.Ed.2d 243(1980).Moreover, the trial court's approval is required to effect a reduction of a class X felony charge such as second degree murder.T.C.A. §§ 8-7-103(21),39-1-702.This plea agreement never became effective because the court never granted defendant's motion that the agreement be accepted.SeeUnited States v. White, 583 F.2d 819, 826(6th Cir.1978).Moreover, the trial judge could not have properly accepted defendant's plea prior to compliance with State v. Mackey.

Here the district attorney proposed that the second degree murder charge be reduced to voluntary manslaughter, stating that the prosecution could not prove that defendant acted with malice....