         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 22, 2001

       STATE OF TENNESSEE v. KERMIT PENLEY, JAMA PENLEY
                      and ANGELA CUNNIFF

                       Appeal from the Circuit Court for Greene County
                       No. 01-CR-043    James Edward Beckner, Judge



                                 No. E2001-01386-CCA-R10-CD



        The State of Tennessee has applied to this court for permission to pursue an interlocutory
appeal pursuant to Tennessee Rule of Appellate Procedure 10. In its application, the State
complains that because the grand jury had yet to take action to charge the respondents in
connection with a homicide, the Greene County Circuit Court was not empowered to conduct
pretrial conferences, to enter pretrial orders, to set a trial date, or to order the state to file its
notice of intent to seek the death penalty or life without possibility of parole. We grant the Rule
10 appeal and generally vacate the lower court's pretrial conference orders.

    Tenn. R. App. P. 10; Orders of the Circuit Court vacated in part, affirmed in part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE , P.J. and
JOSEPH M. TIPTON, J., joined.

Paul G. Summers, Attorney Genereal & Reporter, Jennifer L. Smith, Assistant Attorney General, for
the appellee, State of Tennessee

Susanna Laws Thomas, Newport, Tennessee, for the appellee, Kermit Penley.

Francis Xavier Santore, Francis X. Santore, Jr., Greeneville, Tennessee, for the appellee, Jama
Penley.

William Louis Ricker, William Hall Bell, Greeneville, Tennessee, for the appellee, Angela Michelle
Cunniff.

                                             OPINION

               Murder charges against the three respondents, Kermit Penley, Jama Penley, and
Angela Cunniff, were bound over to the Greene County Grand Jury on March 2, 2001. Apparently
because the state is awaiting the results of some forensic tests, it has yet to seek an indictment from
the grand jury. Despite the absence of an indictment or any other charging instrument, on May 18,
2001, the trial court held a pretrial conference and entered a pretrial order in which it set the "case"
for trial on September 17, 2001, imposed discovery deadlines, and established a May 25, 2001
deadline for the filing of any notice of intent to seek the death penalty or life without possibility of
parole (hereinafter referred to as a "notice of intent"). The state filed exceptions to the court’s order
and moved for a continuance and an interlocutory appeal. See Tenn. R. App. P. (9). It also filed
"under protest" a notice of intent. The trial court partially denied the continuance and denied the
Rule 9 request. The state then filed with this court on June 11, 2001 the current Rule 10 application
and asked for a stay of proceedings in the trial court.

               While the application and stay request were under review, the application was
supplemented to reflect that, on June 28, 2001, the trial court held a second pretrial conference and,
on July 2, 2002, it entered a new pretrial scheduling order in which it "severed [the] matters" and
reset them for trials on separate January dates. The court also established, inter alia, a detailed
discovery schedule, plea-bargaining and motions deadlines, and a "gag order." The July 2 order also
revoked the respondents’ pretrial bonds and stated that the "Court strongly suggests that the cases
be presented to the Grand Jury in December."

                The state posits that the trial court was without authority to conduct pretrial
conferences and to enter the resulting pretrial scheduling orders. It also complains that the trial court
had no basis for compelling the state to file its notice of intent. It asserts that, in denying its "motion
for relief from the pre-trial order . . . , the lower court so far departed from the accepted and usual
course of judicial proceedings as to require immediate review." See Tenn. R. App. P. 10(a).

                Through separate counsel, Jama Penley and Angela Cunniff have responded to the
state’s application. In her response, Penley takes "no position regarding the State’s application," but
she posits that the pretrial orders may be "in contravention of law" and questions the validity of a
pre-indictment notice of intent to seek the death penalty. She requests this court to order the district
attorney general to expeditiously present her case to the Greene County grand jury.

                 Respondent Cunniff responded to the application by singularly addressing the notice
of the state’s intent to seek the death penalty. Essentially, she agrees with the trial court "obliging"
the state to file the notice because it qualified her for the appointment of "capital case" counsel.

                Respondent Kermit Penley filed no response.

               Subsequent to the supplementation of the application, this court stayed the
proceedings in the trial court and ordered that a transcript of that court’s June 28 pretrial conference
be filed. The transcript was filed on August 3, 2001.

                                 I. Action on the Application.


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               We now determine that the state has established a basis for a Rule 10 appeal. We
grant the appeal and proceed to dispose of the issues raised.

                               II. Disposition of the Appeal.

                 We recognize that a Tennessee circuit or criminal court, being the court exercising
general trial jurisdiction over criminal cases in Tennessee, has organizational and administrative
authority over the grand jury. A general sessions court in Tennessee has authority to bind criminal
cases over to the grand jury "if probable cause be found," Tenn. Code Ann. § 40-4-101(5) (1997).
The grand jury, in turn, operates within the aegis of the circuit or criminal court. See Tenn. R. Crim.
P. 6(a) (providing procedures for the circuit or criminal court’s impaneling, swearing in, and
charging grand juries and authorizing the court to form special grand juries); Tenn. Code Ann. § §
40-12-101 (1997) (authorizing court to impanel grand juries), 40-12-103 (1997) (authorizing judges
of the circuit or criminal courts to reconvene grand juries), 40-12-105 (1997) (providing for the
circuit court clerk to publish notices of meetings of the grand jury), 40-13-108 (1997) (providing for
the return of the indictment "to the court"), 40-13-109 (requiring indictments for felony offenses to
be entered into the court’s minutes); see also Tenn. Const. art VI, § 8 ("The jurisdiction of the
Circuit, Chancery and other Inferior Courts, shall be as now established by law, until changed by the
Legislature.") The trial judge appoints the grand jury foreperson. Tenn. R. Crim. P. 6(g).
Obviously, the trial court, being the circuit or criminal court as the case may be, has responsibility
for organizing, impaneling, instructing, and providing leadership for the grand jury. In one sense,
then, matters bound over to a grand jury dwell within the bosom of a trial court. Moreover, we are
cognizant of an "inherent common law power of [a] trial court to control its own jurisdiction and
docket." See State v. Benn, 713 S.W.2d 308, 310 (Tenn.1986).

                That said, a trial court’s role in enabling the activities of the grand jury does not
empower it to become involved in the business of that body. See, e.g., Stanley v. State, 171 Tenn.
406, 104 S.W.2d 819 (1937) (grand jury is a body acting independently of the court and the district
attorney general). Specific provisions of our law illustrate how the trial court is constrained not to
act on matters that remain in utero with the grand jury.

                 The first such constraint that we mention concerns prosecutorial prerogative. The
propriety and scope of prosecuting defendants for the commission of criminal offenses are entrusted
to the district attorney general. See Tenn. Const. art. VI, § 5; Tenn. Code Ann. § 8-7-103(1), (2),
(4) (1993). "The District Attorney General’s discretion to seek a warrant, presentment, information,
or indictment within its district is extremely broad and subject only to certain constitutional
restraints. The District Attorney General and only the District Attorney General can make the
decision whether to proceed with a prosecution for an offense committed within his or her district."
Ramsey v. Town of Oliver Springs, 998 S.W.2d 207, 209 (Tenn. 1999) (internal citations omitted).
"No court may interfere with [the district attorney general’s] discretion to prosecute, and in the
formulation of his decision, he or she is answerable to no one." Pace v. State, 566 S.W.2d 861, 867
(Tenn. 1978); see Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995). Even though
the legislature may enact procedures for the formation and operation of grand juries, neither it nor


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the courts, which themselves enable the activities of the grand juries, may "impede the inherent
discretion and responsibilities of the office of district attorney general without violating Article VI,
§ 5 of the Tennessee Constitution." State v. Superior Oil, 875 S.W.2d 658, 661 (Tenn. 1994).

                 The district attorney general’s discretion to "proceed with a prosecution" obviously
entails discretion about when – or if – a case should be presented to the grand jury. See Tenn. Code
Ann. §§ 8-7-103(4) (1993), 40-13-304 (1997). In the present case, the grand jury has yet to act upon
the respondents’ bound-over cases. We glean from the record available to us that the lack of action
may stem from the prosecutor’s desire to prepare and present evidence that requires time for forensic
evaluation. We cannot discern whether the nature of the forensic testing is such that the results might
influence the district attorney general not to prosecute, but that is no concern of ours. The case
remains within the district attorney general’s discretion to determine "whether to prosecute, and
what charge to bring before a grand jury." See Superior Oil at 660. Although we discern that the
trial court, through its scheduling orders, deadline for filing motions and notices of intent, trial
settings, and suggestions to obtain an indictment, laudably intended to facilitate its docket by
expediting these cases, we must respectfully conclude that these order provisions invade the district
attorney’s domain.


                Second, not only do the conferences and orders impinge upon the district attorney
general’s discretionary domain, but they are incongruent with the inherent authority and
independence of the grand jury. In Tennessee, a grand jury has the power "to return a presentment
of all indictable offenses found to have been committed or to be triable within the county." Tenn.
R. Crim. P. 6(d). "That power enables the grand jury to act independently of a court and the district
attorney general by instituting a criminal action by virtue of a presentment." Superior Oil, 875
S.W.2d at 661 (emphasis added); see State v. Marks, 3 Tenn. Crim. App. 539, 542, 464 S.W.2d 326,
328 (1970) (holding that court may not abate indictment because it is based upon hearsay evidence,
court observes that the "grand jury being an agency of our government . . . may act independent [sic]
of the court and the district attorney" (citing Stanley v. State, 171 Tenn. 406, 104 S.W.2d 819
(1937)); see also Carroll v. State, 517 S.W.2d 13, 16 (Tenn. Crim. App. 1974). The power vested
in the grand jury is constitutionally based. Superior Oil, 875 S.W.2d at 661; see Tenn. Const. art.
I, § 14.

                 Furthermore, the grand jury’s power over an indictment that is requested by the
district attorney general is independent of the district attorney general. He or she assists the grand
jury by "giving legal advice as to any matters cognizable" by the grand jury, but neither the district
attorney general nor any other "officer or person" may be present with the grand jury "when the
question is taken upon the finding of an indictment." Tenn. R. Crim. P. 6(h); see Tiller v. State, 600
S.W.2d 709, 712 (Tenn.1980); Marks, 3 Tenn. Crim. App. at 542, 464 S.W.2d at 328. Thus, after
the district attorney general or his or her assistant leaves the grand jury room, the decision whether
to vote an indictment – and presumably the pace of making that decision – is a matter of the grand
jury’s prerogative, as in the case of voting a presentment.



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                The independence of the grand jury requires that courts not rush that body to
judgment. It may well be that, in the present case, the grand jury has not yet considered the
respondents’ cases, but on the other hand, the courts are not really privileged to know that, unless
the grand jury has reported on the matter. Proceedings before the grand jury are secret. Tenn. R.
Crim. P. 6(k); State v. Hodge, 695 S.W.2d 544, 546 (Tenn. Crim. App. 1985). It falls to neither this
court nor a trial court to know the status of any given matter in the bosom of the grand jury.

                 Perhaps the lower court’s deadline for filing a notice of intent in a potential homicide
case and setting trial dates do not effectuate control over the grand jury, but one may surmise that
these orders could manipulate grand jurors who, as members of the public, may well read or hear in
the news media accounts of the filing of a notice of intent in, or the setting for trial, cases which they
as a grand jury are yet to hear. For instance, in the present case, the grand jurors who meet to
consider the present matters in December may be perplexed to discover that the cases are already set
to be tried only a few weeks following the grand jury meeting. Some grand jurors could assume that
they are expected to vote for an indictment.

                If some initiative of judicial policy is in order to govern situations as the one before
us, we defer to our supreme court to establish such policy. See Tenn. Code Ann. § 16-3-501 (1994)
(supreme court empowered "with general supervisory control over all the inferior courts of the
state"). In the present case, however, we believe the effect of the trial court’s orders is to encroach
upon the powers of the grand jury.

                Third, our rule authorizing pretrial conferences and pretrial orders in criminal cases
provides that the conference may be held at "any time after the filing of the indictment, presentment
or information." Tenn. R. Crim. P. 17.1 (emphasis added). In the present case, neither the pretrial
conferences nor generally the resulting orders are authorized by Rule 17.2.1

                Finally, we note that Rule 12.3(b) provides for the filing of a notice of intent "when
a capital offense is charged in the indictment or presentment." Tenn. R. Crim. P 12.3 (emphasis
added). In the present case, the trial court influenced the state to file its notice of intent before the
filing of any indictment or presentment. We must agree with the state that the terms of Rule 12.3
protect it from being forced to file the notice at this early stage of the proceedings.

                 A trial court does not assume plenary control over the case until the decision to charge
has come into fruition in the form of a charging instrument. Quillen, 928 S.W.2d at 51. Indeed, the
trial court’s jurisdiction to act in the matter, apart from the question of bail which we address below,
is commenced when the charging instrument issues and is returned to the trial court. See State v.
Hammond, 30 S.W.3d 294, 303-04 (Tenn. 2000) (a valid indictment confers jurisdiction upon the
trial court); Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); see Tenn. R. Crim. P. 12(a) (the


         1
          We decline to apply at this juncture in the present case any notion that the trial court has an inherent power
to hold pretrial conferences, apart from Rule 17.1. Any such power should not be used to encroach upon the powers
and prerogatives of the district attorney general and the grand jury.

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lead "pleading" in a criminal case in the trial court is the indictment, presentment, or information).
In the present case, the transition from prosecutorial discretion to the trial court’s jurisdiction has yet
to occur.

                 We point out, however, that Tennessee law admits an exception to the foregoing
principle that the trial court is not authorized to act with respect to matters pending before the grand
jury. In questions of bail, the general sessions court judge or magistrate has authority to determine
the conditions of bail "at any time prior to or at the time the defendant is bound over to the grand
jury," and the circuit or criminal court has authority for such a determination "at any time prior to
conviction or thereafter." Tenn. Code Ann. § 40-11-104 (1997). Thus, whereas the magistrate's
authority to determine bail matters ends after the case is bound over, the trial judge has authority in
bail matters "at any time prior to conviction," including the time during which the matter is pending
before the grand jury.2

                                                    III. Conclusion.

                 Based upon all of the foregoing principles and rules, we hold that, as of the time the
trial court acted, it erred in conducting pretrial conferences, issuing scheduling orders, severing the
defendants, setting the cases for trial, establishing a deadline for filing the notices of intent, and
taking the other actions outlined in the two sentencing orders, with the exception of taking action
with respect to the respondents’ pretrial bail.

               In summary, we grant the state’s Rule 10 application. With the exception of the trial
court’s revocation of pretrial bail contained within its July 2, 2001 order, the provisions of that
court’s May 18 and July 2, 2001 pretrial conference orders will be vacated.3 In order to fully

         2
           We do not forec lose the po ssibility that an a rrested de fendan t may h ave a pre sentable sp eedy trial cla im
that matu res prior to th e filing of a c harging instrume nt in the trial co urt. See Un ited States v. M arion, 404 U.S.
307, 320, 92 S.Ct. 455, 463 (1971) (speedy trial rights arise "after formal accusation, either by arrest or by grand
jury action"); see also, State v. Gray, 917 S.W.2d 668, 673 (Tenn. 1996) (constitutional due process guarantees
provide speedy trial protection between comm encement of offense and com mencemen t of adversarial proceedings).

          We also do not question the trial court’s authority to appoint counsel for any of the respondents who may
be indigent. The provisions of our law that mandate and facilitate the appointment of counsel for indigent
defend ants in crim inal cases do not preclu de coun sel being a ppointe d before a chargin g instrum ent is filed.
Tennessee Rule of Criminal Procedure 44(a) provides that “[e]very indigent defendant shall be entitled to have
assigned counsel in all matters necessary to the defense and at every stage of the proceedings, unless the defendant
execute s a written w aiver.” (em phasis ad ded); see also Tenn. Code Ann. § 40-14-202(a) (1997) (authorizing the
appointment of counsel for indigent defendants in “all felony cases” without requiring the prior filing of a charging
instrument). If for no other reason for counsel to be appointed before the return of an indictment, we recognize the
possible n eed for co unsel to ser ve the de fendan t in an app ropriate ca se on the issu e of pretrial b ail.

         3
          The revocation of bail is excepted from the vacated provisions, but not because this court is ruling upon
the merits of that lower court action. There is before this court no issue of review of the merits of the lower court’s
bail revocation, per se. See Tenn. R. App. P. 8. Rather, our action regarding the bail revocation is merely our
recognition that the lower court’s handling of the bail issues is mandated by Code section 40-11-104.

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effectuate the vacating of the pretrial conference orders of the court below, the notices of intent to
seek the death penalty or life sentence without possibility of parole previously filed by the state are
stricken. Upon the issuance of the mandate of this court’s action, the stay previously imposed by this
court will be vacated.

                                                       ___________________________________

                                                       JAMES CURWOOD WITT, JR., JUDGE




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