        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                         MARCH SESSION , 1999            April 22, 1999

                                                   Cecil W. Crowson
STATE OF TENNESSEE,           )                  Appellate Court Clerk
                                  C.C.A. NO. 01C01-9712-CR-00584
                              )
      Appe llant,             )
                              )
                              )   DAVIDSON COUNTY
VS.                           )
                              )   HON . FRAN K G. C LEM ENT , JR.,
DREW V. SAUNDERS,             )   JUDGE
                              )
      Appellee.               )   (Dism issal of Indic tment)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLEE:                 FOR THE APPELLANT:

LIONEL R. BARRETT, JR.            JOHN KNOX WALKUP
Washington Square Two             Attorney General and Reporter
Suite 418
222 Se cond A venue, N orth       DARYL J. BRAND
Nashville, TN 37201               Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  VICTOR S. JOHNSON
                                  District Attorney General

                                  GEORGE R. BONDS
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 Se cond A venue, N orth
                                  Nashville, TN 37201



OPINION FILED ________________________

REVERSED; REMANDED.

DAVID H. WELLES, JUDGE
                                 OPINION

      The State of Tennessee appeals the trial court’s dismissal of an indictment

for DUI ag ainst De fendan t, Drew V . Saund ers. Defe ndant urges this Cou rt to

affirm the dismissal, arguing that the State exhibited prosecutorial vindictiveness

in violation of his right to due process.           The State, however, denies

vindictiveness, contending that the actions taken by the assistant district attorney

constitute d part of the natural ple a barga ining proc ess. Fur thermo re, the Sta te

argues that the trial court improperly dismissed the indictment based upon the

court’s perception of a lack of sufficient evidence to support the indicted charge

of DUI.



                                     I. FACTS

      The record reflects that Park Ranger E.J. Kirby attempted to stop

Defendant after obse rving him drive arou nd a ba rricade b locking e ntrance to

Centennial Park at 2:00 a.m. on September 27, 1996, a time when the park was

closed to visitors. By affidavit appended to the State’s motion to reconsider, Kirby

attested that Defenda nt initially stopped and the n drove away. Kirby effected

another stop, a t which time the ranger discovered that Defendant smelled of

alcoho l, his eyes w ere bloo dshot, an d his spe ech wa s slurred.



      Defendant reported to Kirby that he had consumed seven or eight drinks

in the previous hour, around 1:30 a.m.         He reported to Kirby that he had

attempted to drive th rough Cent ennia l Park b ecau se, in K irby’s words, “he knew

he had ha d too m uch to dr ink and w as afraid o f being sto pped by police if he



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drove on West End Avenue.” Kirby administered the horizontal gaze nystagmus

test, and on the basis of his findings, requested a DUI unit to perform breath-

alcohol testing on Defen dant. Th e dispatc her repo rted bac k that no D UI units

were av ailable tha t night.



       Ranger Kirby attested that because he could not leave his post at

Centennial Park tha t night to take Defendant downtown, he issued Defendant a

misdemeanor citation for reckless driving by intoxication. In addition, he required

Defendant to call a friend to drive him home. When this driver arrived, Kirby

ensure d that the d river was lice nsed a nd not into xicated.



       Defendant was indicted by the Davidson County Grand Jury for one count

of reckless driving and one count of DUI. On August 28, 1997, Defendant moved

the trial court to dismiss the count of the indictment charging DUI on the basis of

prosecutorial vindictive ness . Follow ing an eviden tiary he aring, th e trial court

dismissed the charge of DUI, stating that “upon recommendation of the Attorney

Gen eral, it is ordered by the Co urt that Coun t two of this ca use be . . .

dismiss ed.” 1



       At the evidentiary hearing on De fendan t’s motion to dismis s the indictm ent,

the defense presented testimony by Anthony Adgent, Defendant’s counsel during

the plea negotiations. Adgent testified that during negotiations with the assistant

district attorney, General Bret Gunn agreed to accept a plea of guilty to reckless

driving, so long as Defendant agreed to perform forty hou rs of community service



       1
       It is clear from the record and from the brief filed by the State that the State did not
recommend, but instead “vigorous[ly] oppos[ed],” dismissal of this count.

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in addition to other requirements. Defendant informed Attorney Adgent that he

could not perform the public service and therefore could n ot accept the p lea offer.

According to Adgent, when he told General Gunn that Defendant could not

accept the terms of the plea offer and would request a preliminary hearing, Gunn

“became somewhat agitated and pointed his finger in [Adgent’s] face and said,

unless your client pleads guilty to reckless driving today and if you have a

preliminary hea ring I’ll []indict him for D.U.I.”



                                     II. ANAL YSIS

                                           A.

       This case is govern ed in part by Bordenkircher v. Hayes, 434 U.S. 357

(1978), in which the United States Supreme Court held that “the course of

conduct engaged in by the prosecutor . . . which n o more than openly presented

the defend ant with the unpleasant alternatives of forgoing trial or facing charges

on which he was plainly subject to prosecution, did not violate the Due Process

Clause of the Fourteen th Amen dment.” Id. at 365. The Court further stated, “In

our system , so long as the prosecutor has probable cause to believe that the

accused committed an offense defined by statute, the decision whether or not to

prosecute, and wh at charg e to file or bring before a grand ju ry, genera lly rests

entirely in his discretion.” Id. at 364.



       Likewise, in United S tates v. G oodw in, 457 U.S . 368 (19 82), the d efenda nt,

after having rejected a plea offer and invoking his right to a jury trial, was indicted

on more serious c harges arising from the sam e inciden t. Id. at 370-71. The

Goo dwin Court explained the Bordenkircher outcom e as follow s:




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       An initial indictment—from which the prosecutor embarks on a
       course of plea n egotia tion— does not ne cess arily define the extent
       of the leg itimate interes t in prosecution. For just as a prosecutor
       may forgo legitim ate charges already brought in an effort to save the
       time and exp ense o f trial, a prosecutor may file additional charges
       if an initial expectation that a defendant would plead guilty to lesser
       charges proves unfounded.

Id. at 380.



       In Goo dwin, the Court reversed a decision by the Court of Appeals for the

Fourth Circuit which adopted a presumption of vindictiveness because the

circumstances at issue in th at case “g ave rise to a genuine risk o f retaliation.” Id.

at 372. In so hold ing, the Supre me Co urt stated that “a change in the charging

decision made after an initial trial is completed is much more likely to be

impro perly motivated than is a pretrial decision .” Id. at 381. Thus, “[a] prosecutor

shou ld remain free befo re trial to exercise the broad discretion entrusted to him

to determine the extent of the societal intere st in prosecution.” Id. at 382. Finally,

the Court also no ted, “This Co urt in Bordenkircher made clear that the mere fact

that a defenda nt refuses to plea d guilty and forces the governm ent to prove its

case is insufficient to warrant a presumption that subsequent changes in the

charging de cision are unjustified.” Id. at 382-8 3.



       Our supreme court spoke on the issue of p rosec utorial v indictive ness in

State v. Phipps, 959 S.W .2d 538 (Te nn. 1997), a case in which the State sought

the death pena lty upon the retr ial of charges for which the defendant had

previously been senten ced to life im prisonm ent.        Fac tually, Phipps is quite

distinct from the case at bar, yet its rationale is instructive. In Phipps, the court

held that “a rebuttable pre sumption o f prosecutorial vindictivene ss may a rise if




                                          -5-
the circumstances of a case pose a ‘realistic likelihood’ of prosecutorial

retaliation.” Id. at 546. Furthermore,

      In assessing whether a ‘realistic likelihood’ of prosecutorial
      retaliation exists, courts must consider whether the right asserted by
      the defendan t would result in dup licative expenditures of
      prosecutorial resourc es, or req uire the S tate to do o ver ag ain what
      it thought it had already done correctly once. . . . When the
      circumstances demonstrate that the prosecutor has ‘a personal
      stake’ or an interest in self vindication, or when institutional biases
      militate against retrial of a decided question, the balance weigh s in
      favor of recognizing the presumption. . . . Likewise, the presumption
      is espec ially warran ted if the pro secuto rial decision to increase the
      charge or sentence is made after an initial trial is completed rather
      than in a p retrial conte xt.

Id. (citing Goo dwin, 457 U.S. at 38 3). From the instructions of the United States

Supreme Court and the Tennessee Supreme Court, we find no basis for

presuming prosecutorial vindictiveness in the pretrial setting of this case.



                                          B.

      Absent a presump tion of vin dictiven ess, w e next r eview the trial c ourt’s

decision to dismiss Defendant’s indictment for DUI based upon actual

vindictiveness. Questions conce rning the credibility of the witnesses, the weight

and value to be given the evidence, and all factual issues raised by the evidence

are resolved by the trier of fa ct, not this C ourt. State v. Pappas, 754 S.W.2d 620,

623 (T enn. C rim. App . 1987). In th is case, the trial court foun d,

      The evidence before me is that there was a not necessarily unusual
      give and take betwee n the . . . assistant district attorne y gene ral in
      [general sessions] court and the attorney for the d efend ant. T here’s
      nothing wrong a t all with a person stating their [sic] position clearly,
      nothing wrong with rais ing voices though I prefer a different
      approach myself. But there is absolutely nothing wrong with that
      and there’s no thing wro ng . . . that if they believe based upon the
      facts and circumstances of that case that th e State is justified in
      saying if you don’t a ccep t this offer we will seek m ore severe
      charges.




                                         -6-
W e conclude that the evidence does not preponderate against this finding by the

trial court.



       Defen dant, through counsel, argued at the hearing on his motion to dismiss

that

       if the State . . . had heard the preliminary hearing and had said, you
       know, this really . . . should have been a D.U.I. I’m going to indict
       it as a D .U.I. it wo uld be perfectly within his right to do that but I think
       that since it’s unrefuted that he said have a preliminary hearing and
       we’ll have you indicted fo r D.U.I., I think that under this set of facts,
       that this is a ra re cas e, that th is mo tion for prosecutorial
       vindictiveness is established.

The law as establishe d by Bordenkircher, as illuminated by Goo dwin, and as

recogn ized by the trial court is clea rly counte r to Defen dant’s arg umen t.



                                            C.

       Although the trial court found no impropriety in the State’s conduct during

plea negotiations with Defendant, the judge nevertheless gran ted D efend ant’s

motion to dismiss the indictment, stating,

              The problem in this ca se is there is absolutely no evidence
       whatsoeve r before me today to justify a D.U.I. charge. Nothing.
       Zero. Zip. The proo f suggests tha t the driver, the defenda nt, drove
       around a barrier. The proof before me that I have heard says that
       no one saw him drive erratically. No one saw him weaving. No one
       saw him speeding. As a matter of fact, the evid ence that I’ve hea rd
       affirma tively says he was no t speed ing, on an d on an d on.
              Obviously, if the matter went to trial there might be other
       evidence but I haven’t heard any and I have to make a decision on
       what I he ard toda y.



       W e conclud e that the tria l judge’s ru ling was e rroneou s. Defendant cannot,

by moving to dismiss the indictment, force the trial court to cond uct a “m ini-trial”

in which the State must present its proof on the merits of the charge of DUI or be



                                            -7-
cut short in its attempt to prosecute. As the United States Supreme Court stated

in Costello v. United States, 350 U.S . 359 (19 56),

        If indictments w ere to be held open to challenge on the ground that
        there was inadequate or incompetent evidence before the grand
        jury, the resulting delay would be great indeed. The result of such
        a rule wou ld be that b efore trial on the me rits a defendant c ould
        always ins ist on a kind of prelimin ary trial . . . .

Id. at 363. F or this re ason , “[a]n ind ictme nt . . . , if valid on its face , is enoug h to

call for trial of the charge on th e merits.” Id.; see United States v. Calandra, 414

U.S. 338, 34 5 (1974 ); State v. Gonzales, 638 S.W.2d 841, 845 (Tenn. Crim. App.

1982) (holding that “indictments are not open to challenge on the ground that

there was inad equate or incom petent e vidence before th e grand jury to support

it”).



        For the foregoing reasons, we conclude that the trial court erred by

dismissing Defen dant’s D UI indictm ent. The dismissal is therefore reversed, and

this case is remanded to the trial court for further proceedings.




                                      ____________________________________
                                      DAVID H. WELLES, JUDGE




                                             -8-
CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




                              -9-
