             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                          January 7, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )
                    APPELLEE,       )
                                    )          No. 01-C-01-9701-CR-00008
                                    )
                                    )          Sumner County
v.                                  )
                                    )          Jane W. Wheatcraft, Judge
                                    )
                                    )          (Accessory after the Fact to
                                    )           Second Degree Murder)
ROBERT ALLEN McKENZIE,              )
                                    )
                   APPELLANT.       )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Justin Johnson                          John Knox Walkup
Attorney at Law                         Attorney General & Reporter
2131 Murfreesboro Road, Suite 205       500 Charlotte Avenue
Nashville, TN 37217                     Nashville, TN 37243-0497

                                        Ellen H. Pollack
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        Tom P. Thompson, Jr.
                                        District Attorney General Pro Tempore
                                        P.O. Box 178
                                        Hartsville, TN 37074-0178

                                        John D. Wootten, Jr.
                                        Assistant District Attorney General
                                        P.O. Box 178
                                        Hartsville, TN 37074-0178




OPINION FILED:_________________________________


REVERSED AND DISMISSED


Joe B. Jones, Presiding Judge
                                    OPINION


       The issue which this court must resolve is whether the statute of limitations

commences in an accessory after the fact prosecution when (a) the crime is committed or

(b) the principal offender is convicted. The trial court found the statute of limitations does

not commence until the principal offender is convicted. The defendant contends the

statute of limitations commences when the crime of accessory after the fact is committed.

After a thorough review of the record, the briefs submitted by the parties, and the law

pertaining to the issue presented for review, it is the opinion of this court the statute of

limitations commenced to run in this prosecution for accessory after the fact when the

offense was committed. Therefore, the judgment of the trial court is reversed and the

prosecution is dismissed since the prosecution was barred by the statute of limitations.

       On the evening of February 20, 1989, Lonnie Malone was murdered in Sumner

County.    The investigating officers suspected Robert Spurlock and Ronnie Marshall

murdered Malone. However, the officers were unable to find any evidence which linked

either Spurlock or Marshall to the murder. Approximately fourteen months after the

murder, the officers obtained a series of statements from Henry Junior “Skully” Apple.

The statements were taken between April 27, 1990, and April 30, 1990.                Apple’s

statements linked Spurlock and Marshall to Malone’s murder. The Sumner County Grand

Jury indicted Spurlock and Malone on May 9, 1990, for first degree murder.

       Spurlock and Malone were tried separately. Both were convicted of first degree

murder and were sentenced to life in the Department of Correction. This court reversed

both convictions and remanded both cases to the trial court for a new trial.1 Spurlock was

tried a second time. He was convicted of murder in the second degree. While Spurlock’s

case was pending in this court, the district attorney general pro tempore discovered neither

Spurlock nor Marshall murdered Malone. In September of 1995, an investigation revealed

that Michael Dancer, Billy Perry, and the defendant were involved in Malone’s murder in

some manner. Shortly thereafter, the prosecutions against Spurlock and Marshall were


       1
       State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App.), per. app. denied, (Tenn.
1993); State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App.), per. app. denied, (Tenn.
1992).

                                              2
terminated.

      The Sumner County Grand Jury returned a presentment charging Michael Dancer

with first degree murder for killing Malone. On March 5, 1996, the grand jury returned a

presentment charging the defendant with the offense of accessory after the fact to first

degree murder. The relevant portion of the presentment states:


                ROBERT ALLEN McKENZIE heretofore on or about the 20th
                day of February, 1989, . . . after the commission of the felony
                of murder by Michael Dancer, and with knowledge or
                reasonable ground to believe that Michael Dancer committed
                said felony, and with intent to hinder the arrest, trial, conviction
                or punishment of Michael Dancer, did unlawfully and
                feloniously provide and aid in providing Michael Dancer with
                means of avoiding arrest, trial, conviction or punishment, and
                thus committed the offense of accessory after the fact of a
                felony.


      The defendant filed a motion to dismiss the presentment on the ground the

prosecution for the offense alleged in the indictment, accessory after the fact, was barred

because the statute of limitations had expired. When the trial court denied the motion,

holding the statute of limitations for this offense commenced when Dancer was convicted

of murder in the second degree, the defendant entered into a plea agreement with the

State of Tennessee. Subsequently, the defendant entered a plea of guilty to accessory

after the fact to second degree murder, a Class E felony. The trial court found the

defendant was a Range I standard offender and imposed a Range I sentence of

confinement for two (2) years in the Department of Correction in conformity with the plea

agreement. The sentence in this case was to be served concurrently to a sentence the

defendant was serving for the commission of an unrelated offense. The assistant district

attorney general and the trial court agreed to permit the defendant to reserve a certified

question of law, whether the prosecution was barred by the statute of limitations. 2

       The record reveals that Dancer, the principal, was convicted of murder in the second

degree after pleading guilty to the offense. This conviction occurred approximately two

months prior to the hearing on the defendant’s motion to dismiss the presentment.




      2
          Tenn. R. Crim. P. 37(b)(2)(i); Tenn. R. App. P. 3(b)(2).

                                                 3
                                              I.



       Prior to the enactment of the Tennessee Criminal Sentencing Reform Act of 1989,

being an accessory after the fact to a felony was a criminal offense.3 The punishment for

this offense was a fine not to exceed $1,000 and confinement in the penitentiary for a term

not to exceed five (5) years, or, in the discretion of the trial court, confinement in a county

workhouse or jail for a term not to exceed one (1) year.4

       The offense of accessory after the fact was a separate and distinct crime from the

felony committed by the perpetrator of the felony. 5 Accessory after the fact was not a

lesser included offense of the felony committed by the perpetrator of the crime.6

       Before an accused could be convicted of being an accessory after the fact to a

felony, the State of Tennessee was required to prove the elements of the offense beyond

a reasonable doubt. The elements of the offense were:

       1.) A felony was committed by the principal offender; 7

       2.) All of the elements of the felony had been consummated;8

       3.) The accused knew or there was a reasonable basis for the accused to believe

the principal offender committed the offense and was subject to being arrested, indicted,

or convicted of the felony; 9

       4.) The accused harbored, concealed, or aided the principal offender; 10

       5.) The intent of the accused in assisting the principal offender was for the purpose



       3
           Tenn. Code Ann. § 39-1-306 (Repl. 1982).
       4
           Tenn. Code Ann. § 39-1-307 (Repl. 1982).
       5
        Monts v. State, 214 Tenn. 171, 192, 379 S.W.2d 34, 43 (1964); State v. Hoosier,
631 S.W.2d 474, 476 (Tenn. Crim. App.), per. app. denied, (Tenn. 1982); see Pennington
v. State, 478 S.W.2d 892, 897 (Tenn. Crim. App. 1971), cert. denied, (Tenn. 1992) (“An
accessory after the fact is not an accomplice.”).
       6
       State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn. Crim. App.), per. app. denied,
(Tenn. 1989); Hoosier, 631 S.W.2d at 476.
       7
           Tenn. Code Ann. § 39-1-306 (Repl. 1982).
       8
           Baker v. State, 184 Tenn. 503, 506, 201 S.W .2d 667, 668 (1947).
       9
           Tenn. Code Ann.§ 39-1-306 (Repl. 1982).
       10
            Tenn. Code Ann. § 39-1-306 (Repl. 1982).

                                              4
of helping him avoid or escape arrest, trial, conviction or punishment;11 and

      6.) The principal offender was convicted of the felony. 12

      In this case, the defendant admitted these elements of accessory after the fact

existed when he entered his plea of guilty to the offense. This court must now consider

when the statute of limitations commenced in this case.



                                               II.



      As previously stated, the crime of accessory after the fact is a felony. The maximum

punishment for this offense was a fine not to exceed $1,000 and confinement in the

Department of Correction for a term not to exceed five (5) years.13

      The statute in effect when this offense was committed provided that the prosecution

for crimes punishable by confinement for a term not to exceed five (5) years was required

to be commenced within two (2) years.14 The statute provided:


                (a) Any person may be prosecuted, tried and punished for any
                offense punishable with death or by imprisonment in the
                penitentiary during life, at any time after the offense shall have
                been committed.

                (b) Prosecutions for any offense punishable by imprisonment
                in the penitentiary when the punishment is expressly limited to
                five (5) years or less, shall be commenced within two (2) years
                next after the commencement of the offense. . . .

                                             *****

                (c) Prosecution for any offense punishable by imprisonment in
                the penitentiary other than as specified in subsection (a) or (b),
                shall be commenced within four (4) years next after the
                commission of the offense.


       In the context of this case, the relevant language of the statute is “shall be



      11
        Tenn. Code Ann. § 39-1-306 (Repl. 1982). The question of intent is a matter to
be decided by the trier of fact from the evidence and reasonable inferences which may be
drawn from the evidence. Webster v. State, 544 S.W.2d 922, 924 (Tenn. Crim. App.), cert.
denied (Tenn. 1976).
      12
           Wilson v. State, 190 Tenn. 592, 596, 230 S.W.2d 1014, 1016 (1950)
      13
           Tenn. Code Ann. § 39-1-307 (Repl. 1982).
      14
           Tenn. Code Ann. § 40-2-101 (Repl. 1982).

                                                5
commenced within two (2) years next after the commission of the offense.” (Emphasis

added). It must be noted that the statute does not distinguish between principal offenders,

aiders and abettors, accessories before the fact, and accessory after the fact.

       The determination of the certified question in this case hinges upon the intent of the

Tennessee General Assembly when this statute was enacted.



                                             A.



       The polestar of statutory construction is the intent of the legislature when a statute

was enacted.15 A court’s role in the interpretation of a statute is to “ascertain and give

effect to the legislative intent without unduly restricting or expanding a statute’s coverage

beyond its intended scope.”16 The common law rules of construction developed through

the years are aids which assist a court in making this determination.17

       The intent of the legislature is to be derived from the face of the statute if the

verbiage contained within the four corners of the statute is plain, clear, and unambiguous. 18

In other words, “[u]nambiguous statutes must be construed to mean what they say.”19

       In this case, the language of the statute in question is plain, clear, and

unambiguous.

                                             B.



       The word “shall” when used in a statute mandates the provisions of the statute.20

In the context of this case, the Tennessee General Assembly required the State of


       15
            Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
       16
        Owens, 908 S.W.2d at 926; see Hicks v. State, 945 S.W.2d 706, 707 (Tenn.
1997); State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997); State v. Sliger, 846 S.W.2d 262,
263 (Tenn. 1993).
       17
        Roberson v. University of Tennessee, 912 S.W.2d 746, 747 (Tenn.), per. app.
denied (Tenn. 1995).
       18
            Austin v. Memphis Publ’g Co., 655 S.W.2d 146, 149 (Tenn. 1983).
       19
            Roberson, 912 S.W.2d at 747.
       20
        See, e.g., Blankenship v. State, 223 Tenn. 158, 165, 443 S.W.2d 442, 445 (1969);
Stubbs v. State, 216 Tenn. 567, 576, 393 S.W.2d 150, 154 (1965); State v. Gauldin, 737
S.W.2d 795, 798 (Tenn. Crim. App.), per. app. denied, (Tenn. 1987).

                                              6
Tennessee to commence a prosecution punishable by imprisonment for a term not

exceeding five (5) years ”next after the commission of the offense.” In other words, the

State of Tennessee was required to commence the prosecution within two (2) years after

the defendant committed the offense of accessory after the fact. Since the offense was

alleged to have occurred on February 20, 1989, and the presentment was returned on

March 5, 1995, it is obvious the prosecution against the defendant was not commenced

within two (2) years “next after the commission of the offense” as mandated by the statute.

       This court must now determine if there were any facts which tolled the running of

the statute of limitations in this case.



                                               C.



       When a prosecution is commenced by a presentment after the expiration of the

statute of limitations, the State of Tennessee must allege in the presentment and prove the

specific facts which the state contends tolled the running of the statute of limitations.21 If

the presentment does not allege and prove sufficient facts, or any facts, which the State

of Tennessee contends tolled the statute of limitations, the accused may not be convicted

of the offense alleged in the presentment. Consequently, such a presentment must be

dismissed.22




       21
         State v. Henry, 834 S.W.2d 273, 275-76 (Tenn. 1992); State v. Davidson, 816
S.W.2d 316, 318 (Tenn. 1991); State v. Comstock, 205 Tenn. 389, 393, 326 S.W.2d 669,
671 (1959); State v. Shaw, 113 Tenn. 536, 538, 82 S.W. 480 (1904); State v. White, 939
S.W.2d 113, 115 (Tenn. Crim. App. 1996); Morgan v. State, 847 S.W.2d 538, 542 (Tenn.
Crim. App.), per. app. denied (Tenn. 1992); State v. Seagraves, 837 S.W.2d 615, 619
(Tenn. Crim. App.), per. app. denied (Tenn. 1992); State v. Tidwell, 775 S.W.2d 379, 389
(Tenn. Crim. App.), per. app. denied (Tenn. 1989); State v. Hix, 696 S.W.2d 22, 25 (Tenn.
Crim. App. 1984); State v. Thorpe, 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980); State v.
House, 2 Shannon’s Cases 610, 611 (1877).
       In State v. Messamore, 937 S.W.2d 916, 919 (Tenn. 1996), the supreme court
stated that if the statute of limitations was tolled by other means than an indictment,
presentment, or information, this rule does not apply. Thus, if the prosecution was
commenced timely by other means (e.g., an arrest warrant or an affidavit of complaint), but
the charging instrument is not returned until after the expiration of the statute of limitations,
the state is not required to allege why the statute of limitations was tolled.
       22
       Davidson, 816 S.W.2d at 321; Comstock, 205 Tenn. at 393, 326 S.W.2d at 671;
Shaw, 113 Tenn. at 538, 82 S.W. at 480; Seagraves, 837 S.W.2d at 619; Tidwell, 775
S.W.2d at 389-90; House, 2 Shannon’s Cases at 611.

                                               7
       An accused may waive the statute of limitations as a defense.23 However, the

waiver must be knowingly, voluntarily, and intelligently entered; and it must appear on the

face of the record that the accused did in fact waive this defense.24 In this case, the record

is devoid of any facts which would indicate the defendant waived the statute of limitations

defense. To the contrary, the defendant asserted this defense by filing a motion to dismiss

the presentment on this ground. He also reserved a certified question of law with the

approval of the trial court and the assistant district attorney general so he could litigate the

issue of whether the statute of limitations had expired before the presentment was

returned.

       Here, the presentment does not allege any facts, which, if established, would toll the

commencement of the statute of limitations. Therefore, the judgment of the trial court must

be reversed and the prosecution for accessory after the fact dismissed.



                                              D.



       The holding in this case is not intended as a criticism of General Thompson, who

served as Attorney General Pro Tempore after the reversal of the convictions and remand

for new trials in the Spurlock and Marshall cases. In other words, he did not initiate the

original prosecution. The presentment in this case was submitted to the Sumner County

Grand Jury after General Thompson discovered Spurlock and Marshall were not the

individuals who murdered Malone. General Thompson notified defense counsel that their

respective clients did not murder the victim, the requisite pleadings were filed in the trial

court, the prosecutions were dismissed as to Spurlock and Marshall, and the presentments

were returned against Dancer and the defendant.

       General Thompson is to be commended for his diligence in continuing to investigate

the Malone murder, his frankness with defense counsel after he was satisfied their clients

did not commit the murder, and his effort to prosecute those individuals who were in fact

responsible for Malone’s murder. His actions in this regard showed strict compliance with


       23
            State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993).
       24
            Id.

                                               8
the ethics of his office and the duty of a district attorney general established by the United

States Supreme Court 25 and the Tennessee Supreme Court.26




                                    ___________________________________________
                                          JOE B. JONES, PRESIDING JUDGE



CONCUR:




______________________________________
      WILLIAM M. BARKER, JUDGE




______________________________________
          JOE G. RILEY, JUDGE




       25
       Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1314,
1321 (1935).
       26
        State v. Fields, 7 Tenn. 140, 145046 (1823); In Re Death of Reed, 770 S.W.2d
557, 560 (Tenn. Crim. App.), per. app. denied (Tenn. 1989).

                                              9
