State v. Womack

• Decision Date: 28 November 1979
• Citation: 591 S.W.2d 437
• Parties: STATE of Tennessee, Appellant, v. Jeffrey G. WOMACK, Appellee.
• Court: Tennessee Court of Appeals

Page 437

591 S.W.2d 437

STATE of Tennessee, Appellant, v. Jeffrey G. WOMACK, Appellee.

Court of Appeals of Tennessee, Middle Section.

Nov. 28, 1979.

Certiorari Denied by Supreme Court Dec. 3, 1979.

John J. Hollins and Edward M. Yarbrough, Nashville, for appellee.

John C. Zimmermann, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, of counsel, Victor S. Johnson, III, Asst. Dist. Atty., Nashville, Thomas H. Shriven, Dist. Atty. Gen., of counsel, for appellant.

TODD, Judge.

OPINION

The State of Tennessee has appealed from an order of the Circuit Judge granting a petition for certiorari and supersedeas and reversing an order of the Juvenile Court which quashed certain subpoenas issued at the instance of the accused.

As received in this Court, the record of the Circuit Court contained no transcript of proceedings of the Juvenile Court. In response to the writ of certiorari issued by this Court upon its own motion, the Clerk of the Juvenile Court has certified and transmitted to this Court a transcript of the proceedings of the Juvenile Court in this cause. Newport v. Rowen, 5 Tenn. (4 Haywood) 196 (1817).

Said record contains a "Petition" sworn to by Sgt. Douglas Dennis on August 28, 1979, and asserting that, on or about February 25, 1975, Jeffrey Glenn Womack, a child under the age of 18 years, committed a felonious assault and murder upon Marcia Virginia Trimble, aged 9 years. Said petition also contains a notation over the signature of the Clerk of the Juvenile Court as follows:

"Jeffrey Glenn Womack was taken into custody on 8-28-79 at 2:30 AM o'clock and placed in detention."

The next item in the record is a "Motion for Discovery and Inspection" filed on behalf of the defendant. This motion was subsequently denied by the Juvenile Judge, and no action has been taken to obtain review of his decision. It is not before this Court on this appeal.

The record contains three subpoenas for witnesses to testify "in the interest of" the defendant. One is for Dr. Jerry Francisco to appear with his notes concerning the autopsy on the body of Marcia Trimble. Another is for Lt. Sherman Nickens, Chief of Homicide Division, Nashville Police Department to appear with six groups of documentary evidence from the police files. The third subpoena is for Diane Vaughn, Nashville Police Force, to appear with a pair of spectacles identified as the property of the mother of the deceased.

The record contains an undated decree of the Juvenile Court stating that the Court heard motions to quash the three above mentioned subpoenas "upon the argument of counsel" and concluding as follows:

"From all of which the Court finds and reaffirms its decision to sustain the State's position and quash the subpoenas Referred to the defendant."

Finally, the record from the Juvenile court contains the following certificate of the Juvenile Judge:

"This is to certify that there was no evidence presented in the case of Jeffrey Glenn Womack, all hearings were on motions."

On October 3, 1979, the defendant filed in Circuit Court a petition for writs of certiorari and supersedeas, exhibiting an uncertified copy of the decree of the Juvenile Court as above mentioned.

On October 4, 1979, the State filed an answer denying the authority of the Circuit Court to review said decree and asserting that said decree was correct.

On October 4, 1979, the Circuit Judge entered an order sustaining the petition and ordering:

". . . that . . . the Clerk . . . issue a writ of certiorari and supersedeas to the . . . Judge of the Juvenile Court . . . reversing and superseding the order . . . quashing the subpoenas . . ."

From said order an appeal has been allowed by the Circuit Judge and accepted by this Court.

The brief of the State proposes the following issues on appeal:

"1. Whether the Circuit Court possessed the authority to grant writs of certiorari and supersedeas for an order of the Juvenile Court rendered during disposition of a transfer hearing where the provisions of Tennessee Code Annotated Section 37-258(d) prohibit any civil or interlocutory appeal from orders of a juvenile court during transfer proceedings.

2. Whether the Juvenile Court possessed the authority to quash subpoenas for State witnesses which were requested by the defendant for the purpose of discovery and where no showing was made by the defendant that such witnesses would be offered to negate the State's evidence tending to establish probable cause that the defendant committed the charged offense."

Appellant's first insistence is that "the Circuit Court had no authority to grant writs of certiorari and supersedeas Over the Juvenile Court's order."

Appellant insists that jurisdiction of this proceeding is placed in the Criminal Court by T.C.A. § 37-258(d) which reads in pertinent part as follows:

"(d) There shall be no civil or interlocutory appeal from a juvenile court's Disposition pursuant to § 37-234. In cases where the juvenile court has found that a child should be tried as an adult, pursuant to § 37-234(a), the criminal court, upon motion of the child filed within ten (10) days of the juvenile court order, shall hold a hearing as expeditiously as possible to determine whether it will accept jurisdiction over the child, provided that if no motion is filed with the criminal court within the ten (10) day period, the child shall be subject to indictment, presentment or information for the offenses charged and thus subject to trial as an adult . ." (Emphasis supplied)

This is not a civil or interlocutory appeal from a Disposition of the cause by the Juvenile Court. This is an action of common law certiorari to correct a Pre-trial action of the Juvenile Court. There has been no disposition of the case by the Juvenile Judge. Transfer to Criminal Court is only one of the possible results. A Possible transfer to Criminal Court is not sufficient grounds for negating the statutory general authority of the Circuit Court in favor of the specific, limited authority of the Criminal Court which does not arise until transfer.

T.C.A. §§ 16-501, 16-512, and 27-801 provide as follows:

"16-501. General jurisdiction. The circuit court is a court of general jurisdiction, and the judge thereof shall administer right and justice according to law, in all cases where the jurisdiction is not conferred upon another tribunal."

"16-512. Appellate Jurisdiction. The circuit court has an appellate jurisdiction of all suits and actions, of whatsoever nature, unless otherwise provided, instituted before any inferior jurisdiction, whether brought by appeal, certiorari, or in any other manner prescribed by law."

"27-801. Constitutional basis. The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy."

Under § 16-512 the Circuit Court has appellate jurisdiction of decisions of the Juvenile Courts. State v. Bockman, 139 Tenn. 422, 201 S.W. 741 (1917); Doster v. State, 195 Tenn. 535, 260 S.W.2d 279 (1953).

Although the record does not disclose the exact nature of the Juvenile Court hearing for which the subpoenas were issued, the briefs of both appellant and appellee refer to the impending hearing as a "transfer hearing." Therefore this Court will deal with the issues as though the record revealed such.

A "transfer hearing" is provided by T.C.A. § 37-234 which reads in pertinent part as follows:

"37-234. Transfer from juvenile court. (a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this state, the court, before hearing the petition on the merits, may transfer the child to the sheriff of the county to be held according to law and to be dealt with as an adult in the criminal court of competent jurisdiction. The disposition of the child shall be as if he were an adult if:

(1) The child was sixteen (16) years or more of age at the time of the alleged conduct, or the child was fifteen (15) or more years of age at the time of the alleged conduct if the offense charged included murder, manslaughter, rape, robbery with a deadly weapon or kidnapping;

(2) A hearing on whether the transfer should be made is held in conformity with §§ 37-224, 37-226, and 37-227;

(3) Reasonable notice in writing of the time, place and purpose of the hearing is given to the child and his parents, guardian or other custodian at least three (3) days prior to the hearing; and,

(4) The court finds that there are reasonable grounds to believe that:

(i) The child committed the delinquent act as alleged;

(ii) The child is not committable to an institution for the mentally retarded or mentally ill; and,

(iii) The interests of the community require that the child be put under legal restraint or discipline.

(b) In making the determination required by subsection (a) of this section, the court may consider, among other matters:

(1) The extent and nature of the child's prior delinquency records;

(2) The nature of past treatment efforts and the nature of the child's response thereto (3) Whether the offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(4) Whether the offense was committed in an aggressive and premeditated manner; and,

(5) The possible rehabilitation of the child by use of procedures, services and facilities currently available to the court in this state."

It is seen from the above that a "transfer hearing" in Juvenile Court involves many issues, of which the first is whether there are reasonable grounds to believe the child committed the delinquent act as alleged.

Until a juvenile has been "transferred" to the Criminal Court, the proceeding against him is...