Willis v. Grand Jury Foreperson Beverly Johnson

• Decision Date: 27 September 2018
• Docket Number: No. E2017-02225-COA-R3-CV,E2017-02225-COA-R3-CV
• Parties: HOWARD HAWK WILLIS v. GRAND JURY FOREPERSON BEVERLY JOHNSON
• Court: Tennessee Court of Appeals

HOWARD HAWK WILLIS v. GRAND JURY FOREPERSON BEVERLY JOHNSON

No. E2017-02225-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

Assigned on Briefs June 5, 2018

September 27, 2018

Appeal from the Chancery Court for Bradley County

No. 2017-CV-173

Jerri S. Bryant, Chancellor

The pro se appellant, a state inmate incarcerated on capital murder convictions, filed a petition for a writ of mandamus in the Bradley County Chancery Court ("trial court"). Claiming to have information regarding a homicide other than those for which he was convicted, the petitioner requested that the trial court direct the Bradley County Grand Jury foreperson to grant him the right to testify before the grand jury pursuant to Tennessee Code Annotated § 40-12-104 (2014). The petitioner subsequently filed a motion to be transported for a hearing, requesting that the trial court issue a habeas corpus ad testificandum. The State of Tennessee ("the State") then filed a response in opposition to the petition for writ of mandamus. The petitioner responded by filing a motion to strike the State's response, arguing that the State was not a proper party to this action. On October 26, 2017, the trial court entered an order dismissing the petition for writ of mandamus, finding, inter alia, that the petitioner possessed no mandatory right to appear before the grand jury. The petitioner has appealed. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D. BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Howard Hawk Willis, Nashville, Tennessee, Pro Se.

Crystal R. Freiberg, Bradley County Attorney, Cleveland, Tennessee, for the appellee, Grand Jury Foreperson Beverly Johnson.

OPINION

I. Factual and Procedural Background

The petitioner, Howard Hawk Willis, was convicted following a jury trial in 2010 of two counts of premeditated first-degree murder and one count of felony murder in the perpetration of a kidnapping for the October 2002 murders of two teenaged victims, Adam Chrismer and Samantha Chrismer. See State v. Willis, 496 S.W.3d 653, 665-66 (Tenn. 2016), cert. denied, 137 S.Ct. 1224 (Mar. 6, 2017). Mr. Willis was sentenced to death for each conviction, and his convictions and sentences were upheld on direct appeal by the Tennessee Court of Criminal Appeals, see State v. Willis, No. E2012-01313-CCA-R3-DD, 2015 WL 1207859, at *1 (Tenn. Crim. App. Mar. 13, 2015), and the Tennessee Supreme Court, see State v. Willis, 496 S.W.3d at 761. Mr. Willis remains confined at the Riverbend Maximum Security Institution in Nashville.

On July 5, 2017, Mr. Willis initiated the instant action by filing a petition for a writ of mandamus in the trial court, claiming to have "credible evidence" regarding the 2002 murder of his stepfather, Samuel Johnson Thomas, and alleged "official misconduct that has occurred within the investigation of [Mr. Thomas's] murder by the Bradley County Sheriff's Department." Naming as a "defendant"/respondent the then foreperson of the Bradley County Grand Jury, Beverly Johnson ("the Foreperson"), Mr. Willis requested that the trial court issue a writ of mandamus ordering the Foreperson to "meet with [Mr. Willis] allowing him to provide the evidence he has in the murder of Samuel Johnson Thomas and of official misconduct in said investigation thereof." In support of his petition, Mr. Willis relied on Tennessee Code Annotated § 40-12-104(a)-(c) concerning witnesses in grand jury proceedings.

Mr. Willis attached several documents to his petition, including affidavits executed by him; correspondence initiated by him with the Tennessee Attorney General, Tenth Judicial District Attorney General, Bradley County Sheriff's Department, and the previous Bradley County Grand Jury foreperson; two petitions he had prepared to file in the Bradley County Criminal Court ("criminal court") seeking to testify before the grand jury; and a printout from the Tennessee Offender Management Information System ("TOMIS") reflecting his security status as an inmate. An attached criminal court petition, styled as a "Petition to Enforce the Petitioners [sic] Statutory Right to Testify Before the Grand Jury," included a certificate of service executed by Mr. Willis, indicating that he had served the petition on the "Bradley County District Attorney's Office" on May 2, 2014. In a subsequent letter to the state attorney general at the time, Mr. Willis asserted that the criminal court had not filed this petition upon the alleged direction of the criminal court judge and district attorney general. Mr. Willis's attachments to the petition at issue in the present action also included an undated"Petition for Writ of Habeas Corpus Ad Testificandum," styled for filing in the criminal court with the Foreperson and District Attorney General Steven Crump named as "defendants"/respondents.

As the Foreperson notes, Mr. Willis had also sought injunctive relief in federal court under 42 U.S.C. § 1983, filing a complaint against General Crump in the United States District Court for the Eastern District of New York, which was subsequently transferred to the United States District Court for the Eastern District of Tennessee at Chattanooga. See Willis v. Crump, No. 1:15-cv-258-CLC-CHS, 2015 WL 8781215, at *1 n.1 (E.D. Tenn. Dec. 14, 2015) (explaining that at the time he filed the federal complaint, Mr. Willis was in the Eastern District of New York "in connection with a resentencing hearing on a cocaine conspiracy conviction"). Mr. Willis requested that the federal court enjoin General Crump and "'state officials, employees, assigns, and et als [sic]' from depriving [Mr. Willis] of his right to present evidence to a Bradley County grand jury—a right allegedly secured to him by Tenn. Code Ann. § 40-12-104(a) and (b)." Id. at *1. Determining, inter alia, that Mr. Willis's complaint did "not present a [federal] constitutional violation," the federal court dismissed Mr. Willis's complaint in December 2015. Id. at *4.

On July 14, 2017, Mr. Willis filed in the trial court a "Motion to be Transported for Hearing," requesting that the trial court issue a habeas corpus ad testificandum "to insure [Mr. Willis's] presence for hearing." He concomitantly filed a "Petition for Writ of Habeas Corpus Ad Testificandum" as well. On July 26, 2017, the State, acting through General Crump, filed a response in the trial court in opposition to Mr. Willis's petition for writ of mandamus, arguing, inter alia, that "[t]here is no basis, process or authority for transporting an inmate to appear before a grand jury." The State also asserted that the issuance of a writ of mandamus would not be proper because Mr. Willis was "attempting to collaterally attack his convictions." The State summarized that "[i]n all of his material presented, [Mr. Willis] indicates that if he is allowed to present evidence, then that evidence of a past crime would somehow exonerate him with regard to his current convictions."

The State attached to its response, inter alia, a letter dated October 11, 2016, from Bradley County Criminal Court Judge Sandra N.C. Donaghy to Mr. Willis, in which Judge Donaghy had responded to a letter previously written by Mr. Willis to the Foreperson, who had requested Judge Donaghy's advice in responding. Judge Donaghy stated in pertinent part:

It is the duty of the district attorney general to prosecute all violations of the state criminal statutes and perform all prosecutorial functions attendant thereto for the protection of the state or in publicinterest. Accordingly, I will transfer the materials sent to Ms. Johnson to General Crump for investigation and review. I encourage you to work with his office in this process.

I agree with your assertion that T.C.A. [§] 40-12-104 allows a citizen to apply to present a case to the grand Jury for review. The Grand Jury will allow you to present this matter once you are released from custody. There is no basis, process, or authority for transporting an inmate to appear before a grand jury. The system has to balance your interest in providing information against the integrity of the correctional system. You can do exactly what you are trying to do by providing your information to the District Attorney through letters, interviews, and depositions.

Mr. Willis filed a motion to strike the State's response on August 11, 2017, asserting that the State lacked standing and that if representation were provided to the Foreperson, it should be by the Bradley County attorney. The record includes no indication that the trial court ruled on the motion to strike.¹

On October 26, 2017, the trial court entered an order dismissing Mr. Willis's petition for writ of mandamus. The court specifically found in relevant part:

This cause came for review on the Petition for Writ of Mandamus wherein [Mr. Willis] has requested to exercise his "rights" under T.C.A. § 40-12-104 to testify before the Grand Jury. [Mr. Willis] claims to have knowledge concerning the murder of Samuel Johnson Thomas. [Mr. Willis] claims to have credible evidence regarding the Samuel Johnson Thomas [homicide] and official misconduct which has occurred in the investigation of his murder by the Bradley County Sheriff's Department. [Mr. Willis] claims that he tried to provide the evidence to the Bradley County District Attorney General's Office and the Bradley County Sheriff's Department, both of whom he alleges did not respond to him. This matter was previously brought to Judge Sandra Donaghy's attention pursuant to the petition filed by [Mr. Willis] and apparently, Judge Donaghy, if the statements of [Mr. Willis] are true, told [Mr. Willis] that the Grand Jury would allow him to present his evidence once he is released from custody. Judge Donaghy previously told [Mr. Willis] there is no basis, process or authority for transporting an inmate to appear before the

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