State v. Turner, 85-129-III
| Citation | 713 S.W.2d 327 |
| Decision Date | 16 January 1986 |
| Docket Number | No. 85-129-III,85-129-III |
| Parties | STATE of Tennessee, Appellant, v. James Howard TURNER, Appellee. 713 S.W.2d 327 |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
W.J. Michael Cody, Atty. Gen., Kimberly Lynn Anne Hattaway, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., John Zimmermann, Asst. Dist. Atty. Gen., Nashville, for appellant.
Edward M. Yarbrough, J. Russell Heldman, Hollins, Wagster & Yarbrough, Nashville, for appellee.
James Howard Turner was convicted of one count of murder in the first degree and two counts of aggravated kidnapping. He received a sentence of life imprisonment for the first degree murder and forty years imprisonment for each count of aggravated kidnapping. The trial judge overruled each ground of the motion for a new trial except one. After a full evidentiary hearing the trial judge held that Mr. Turner received ineffective assistance of counsel and granted the motion for a new trial. The state appealed to this Court and the judgment was affirmed. State v. James Howard Turner, Tennessee Criminal Appeals, opinion filed at Nashville, August 7, 1984. The state then sought review in the Supreme Court. Permission to appeal was denied, concurring in results only. State v. James Howard Turner, Tennessee Supreme Court, order filed at Nashville, December 17, 1984.
On remand Mr. Turner filed a "motion to reinstate plea offer, or in the alternative, to dismiss the indictment." The motion was argued and taken under advisement. The trial judge then issued an order giving the state fifteen days to reinstate the plea bargain offer of two years, which had been made and rejected prior to the trial. The order provided that if the state failed to reinstate the plea bargain offer within the allotted time, the case would be dismissed. The order went on to stay its effective date, in order to allow the state to appeal. The state has done so, and the question now presented is whether the trial court acted beyond the scope of its authority by ordering the District Attorney General to make the defendant a particular plea offer or suffer dismissal of the indictment. As far as we can determine, this is a question of first impression in Tennessee and everywhere.
According to this Court's opinion in the state's first appeal, Mr. Turner and his two co-defendants, Sam John Passarella and Earl Carroll, purchased bogus silver from Monte Hudson. When they learned that the silver was not genuine, they abducted Mr. Hudson and his wife at gunpoint from the parking lot of a Nashville motel. Mr. Turner forced Mrs. Hudson into his car, and Messrs. Passarella and Carroll took Mr. Hudson away in another car. Mr. Turner released Mrs. Hudson the next day. Mr. Turner and Mr. Passarella were indicted for two counts of kidnapping and their trials were severed. Mr. Carroll accepted a sentence of two years for kidnapping in exchange for his testimony against Mr. Passarella, who was convicted and received a sentence of seventy years imprisonment. Prior to Mr. Turner's trial, Mr. Hudson's corpse was discovered, and the facts indicated that he was killed by Mr. Passarella. A superseding indictment was obtained against Mr. Turner, charging him with felony murder.
Mr. Turner retained Lance Bailey, an attorney from Socorro, New Mexico to represent him. Thomas C. Binkley of Nashville was retained to serve as local counsel to deal with questions of Tennessee law. Mr. Bailey was the lead counsel. Because of concern about the trauma that Mrs. Hudson would suffer by having to testify at another trial, the state offered Mr. Turner the same plea bargain that Mr. Carroll had received. Mr. Binkley strongly recommended that Mr. Turner accept this offer, but Mr. Bailey stated that the state did not have a case and he believed that through careful cross-examination that he could show that Mrs. Hudson actually went with Mr. Turner voluntarily.
At the hearing on the motion for a new trial the trial judge concluded that Mr. Turner had received ineffective assistance of counsel from Mr. Bailey. He found that in recommending rejection of the plea bargain offer Mr. Bailey greatly understated the risks of going to trial, was overly optimistic about the outcome of the trial, and conveyed unrealistic expectations to the appellant. He found that the state's offer was extremely generous and that any competent defense attorney would have seriously considered the offer and advised his client to accept it.
This Court agreed and affirmed the granting of the new trial. On remand, counsel filed and the trial court granted the "motion to reinstate plea offer, or in the alternative, to dismiss the indictment." This extraordinary appeal pursuant to Rule 10, T.R.A.P. resulted.
Initially, Mr. Turner has raised a procedural challenge to the way the state framed the issue on appeal. He argues that the state wrote in its application for permission to appeal that the issue was whether the trial judge abused his discretion in issuing the order denying the state's "motion to reconsider or clarify" the order granting the motion. The state argues in its brief that the issue is whether the trial judge exceeded the scope of his authority in issuing the original order requiring reinstatement of the plea agreement. Mr. Turner says that by framing the issue differently that the state is advancing an issue which it has already waived.
In its application for an extraordinary appeal, the state alleged that the trial court " 'has so far departed from the accepted and usual course of judicial proceedings' as to require (immediate) review of the trial court's action." This language tracks Rule 10(a)(1), T.R.A.P.
In the motion to reconsider, the state asked the trial court to "reconsider the prior order or, in the alternative ... further clarify" the previous order. The motion also sets forth the state's intention to seek appellate review of the prior order.
Thus, it...
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State v. Turner
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