        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 7, 2011 Session

                 STATE OF TENNESSEE v. BRYANT CARTER

              Direct Appeal from the Criminal Court for Shelby County
                       No. 09-02185     John Fowlkes, Judge




                 No. W2010-02673-CCA-R3-CD - Filed June 15, 2012


Defendant, Bryant Carter, entered into a negotiated plea agreement and pled guilty to driving
under the influence of an intoxicant (DUI), and properly reserved the following certified
question of law for appeal: “Whether further prosecution of this case is barred by double
jeopardy under the U.S. and Tennessee Constitutions when the Defendant was detained under
a pro forma policy of the General Sessions Criminal Court while properly out on a
misdemeanor citation in lieu of arrest.” After a thorough review, we affirm the judgment of
the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Bryant Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Charles Bell, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

I. Background

        On September 13, 2008, Defendant was driving his vehicle in Memphis on I-240
approximately one-half mile south of that highway’s intersection with Walnut Grove Road.
He collided with three parked vehicles: a privately owned pick-up truck, an ambulance, and
a fire truck. No one was injured in the wreck except Defendant. Due to his injuries,
Defendant was taken by ambulance to the Regional Medical Center at Memphis for treatment
and was released a few hours later. Because of evidence that Defendant had consumed
alcoholic beverages prior to the wreck, officers of the Memphis Police Department began an
investigation. Defendant consented to a blood sample being withdrawn from him; a later test
of this sample showed a blood alcohol content of 0.24. Other evidence also provided
probable cause to justify Defendant’s arrest for DUI. Since he had been taken to the hospital,
a misdemeanor citation in lieu of arrest was issued to Defendant at the hospital. The citation
required Defendant to report to the jail annex on September 22, 2008, for booking and
processing. He complied with this required procedure. The citation also ordered Defendant
to appear in the Shelby County General Sessions Criminal Court on October 6, 2008.

       Defendant remained free without bail being imposed until he arrived in court with his
attorney on October 6, 2008. At that time, over Defendant’s objection, bond was set in the
amount of $1,000.00 for the charges reflected in the citation: DUI, reckless driving, and
public intoxication. Defendant was taken into custody until he could make his bail.
Defendant testified in Criminal Court, at the hearing of his motion to dismiss all charges, that
he was in custody for approximately five hours before being released on bond. The State
conceded that Defendant was initially charged with DUI and reckless driving pursuant to a
misdemeanor citation in lieu of arrest. The State also agreed that when Defendant appeared
in General Sessions Criminal Court on October 6, 2008, “bail was set, at that time, at
$1,000.00 per memorandum, signed by all the Shelby County General Sessions [Criminal
Court] Judges.” The referenced memorandum was made an exhibit and is set forth below:

                                           MEMO

        To:            Shelby County Judicial Commissioners
                       Shelby County Pretrial Services
                       Harvey Henderson, Administrator
                       General Sessions Criminal Court Clerk’s Office

        From:          General Sessions Criminal Court Judges

        Date:          February 7, 2008

        Re:            Bonds – Driving Under the Influence of an Intoxicant
                       (DUI)

        Effective as of Monday, February 11, 2008, all minimum DUI bonds are to
        be set at $1,000.00 (one thousand dollars). Also, effective as of the same



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        date the attached form is to be used and filed in the court jackets of each
        DUI case at the time of the bond is [sic] setting.

                Please address any concerns to Judge Lambert Ryan, the
                Administrative Judge for the General Sessions Criminal
                Court.

       The “attached form” referred to in the memo is a form for a court order in the Shelby
County General Sessions Criminal Court designated as “Order on Bond Setting.” The form
has blank spaces to be filled in or checked, as applicable, to provide information on: (1) how
long a defendant has resided in Shelby County, (2) whether defendant is employed, (3)
defendant’s family ties, (4) defendant’s prior felony and misdemeanor convictions, (5) any
prior failures by defendant to appear in court or for booking and processing, (6) whether
defendant is on parole or probation and (7) any other pertinent factors. The following
appears toward the bottom of the order:

        The Judicial Commissioner has determined that the bail necessary to
        reasonably assure the appearance of the defendant while at the same time
        protecting the safety of the public should be set in the amount of
        ___________.

(Emphasis added).

        Finally, there is a space provided for special conditions of bail to be listed, and,
significantly, the form order is specifically prepared to be signed by a Judicial Commissioner.

        Defendant waived preliminary hearing and was subsequently indicted by the Shelby
County Grand Jury for DUI and reckless driving. He filed a motion to dismiss all charges
on the basis that “his State Constitutional Rights against Double Jeopardy would be violated
upon the continued prosecution of the Defendant for these charges.” In the specific
allegations of the motion, Defendant also asserted that his rights to be protected against
double jeopardy which are guaranteed in the United States Constitution were also violated.
Defendant’s theory for relief can be summarized as follows: at the hospital, he was charged
but released on a misdemeanor citation in lieu of arrest, he reported to the sheriff’s office for
processing as required, he came to court as required, and pursuant to a Shelby County
General Sessions Criminal Court policy, he was “arrested and required to post a bond.”
Defendant asserts that his arrest and requirement of being in custody for five hours before
being released on bond was “without legitimate remedial basis” and was thus punishment.
Defendant argues that since he has already been punished for the offenses of DUI and
reckless driving, double jeopardy protections entitle him to have the pending charges

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dismissed. The trial court had a brief session in open court approximately two months after
the hearing on Defendant’s motion to dismiss all charges. At this session the judge
announced that the motion to dismiss charges was denied, and that a written order would be
entered. That order was entered and the trial court ruled that requiring Defendant to be taken
into custody until such time as he made a $1,000.00 was not punishment. Defendant
subsequently pled guilty and reserved his certified question of law for appeal.

II. Analysis

       A defendant may enter a guilty plea but still reserve for appeal “a certified question
of law that is dispositive of the case” if certain procedural requirements are met. Tenn. R.
Crim. P. 37(b)(2); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). Under this
procedure, our review is strictly limited to the precise issue certified as the question of law
reserved for appeal. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008) (“As we have stated
repeatedly, no issue beyond the scope of the certified question will be considered.”); Preston,
759 S.W.2d at 650; Tenn. R. Crim. P. 37(b)(2)(A)(ii) (“the question of law as stated in the
judgment or order reserving the certified question identified clearly the scope and limits of
the legal issue reserved.”) The importance placed upon properly wording the certified
question of law is shown in a footnote in the Day opinion, which states in part,

        . . . . When crafting a certified question, both the defendant and the State
        would be prudent to review the Rule, craft the certified question to [ensure]
        that it meets each of the requirements delineated in subsection (b)(2)(A)(i)-
        (iv) of the Rule, and analyze whether the issue as stated in the judgment
        order is broad enough to meet the intent of both parties . . . .

Day, 263 S.W.3d at 900, n. 8.

       As noted above, the certified question of law is,

       Whether further prosecution of this case is barred by double jeopardy under the
       United States and Tennessee Constitutions, if the defendant was detained
       under a pro forma policy of the General Sessions Criminal Court while
       properly out on a misdemeanor citation in lieu of arrest.

       The issue for this Court to determine, as applicable to the facts of this case, is whether
Defendant was punished for DUI and reckless driving when he was ordered to make a bond
after he appeared in Court pursuant to a directive in his misdemeanor citation, and because
the only reason the bond was set was due to a “pro forma” policy of the Shelby County



                                               -4-
General Sessions Criminal Court Judges to set a minimum bond of $1,000.00 in all DUI
cases.

       According to the concession by the State at the hearing, the only reason Defendant
was removed from a status of release pursuant to a misdemeanor citation, and ordered to
make a $1,000.00 bond to again be released, was the General Sessions Criminal Court’s
policy. A careful reading of that policy shows that it is literally directed only to the Judicial
Commissioners of Shelby County. The form order included with the memorandum has a
place for the signature of a Judicial Commissioner rather than a General Sessions Judge.
Furthermore, the memorandum states that the minimum amount of bond is to be $1,000.00.
The memorandum itself does not strictly prohibit a defendant from being released on his/her
own recognizance, or from remaining released by misdemeanor citation pending disposition
of the charges.

       Nevertheless, the certified question agreed to by the State and Defendant, and the
State’s concession at the trial court’s hearing, results in this Court accepting the fact that the
appellate record shows the only reason Defendant was taken into custody until he could make
a $1,000.00 bond, after he had initially been released from September 13, 2008 until October
6, 2008 pursuant to a misdemeanor citation, was the “minimum bond” policy of the Shelby
County General Sessions Criminal Court.

        If the action by the General Sessions Court when it removed Defendant from a release
status by citation, and ordered him to be placed on a release status only after posting a
$1,000.00 bond is punishment for the charged offenses, double jeopardy principles are
implicated. See State v. Pennington, 952 S.W.2d 420, 422 (Tenn. 1997) (“The proceeding
must be ‘essentially criminal’ and constitute an action ‘intended to authorize criminal
punishment to vindicate public justice.’” quoting United States v. Grisanti, 4 F.3d 173, 175
(2 nd Cir. N.Y. 1993)).

       Defendant relies upon Pennington, and this Court’s opinion in State v. Coolidge, 915
S.W.2d 820 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Troutman, 979
S.W.2d 271 (Tenn. 1998), in support of his argument that the charges against him must be
dismissed with prejudice. At issue in Pennington was a policy by the Davidson County
General Sessions Judges “whereby persons charged with driving while intoxicated were
detained for twelve hours (more or less) upon their refusal to submit to a breath-alcohol test.”
Pennington, 952 S.W.2d at 421. The defendant refused the test after his arrest for DUI and
“was not permitted to arrange his release immediately.” The defendant asserted that double
jeopardy principles mandated that his DUI charges be dismissed. Our Supreme Court
disagreed. In doing so the Pennington court held,



                                               -5-
               The double jeopardy clause of the Fifth Amendment to the United
        States Constitution, applicable to the states through the Fourteenth
        Amendment, provides that no person shall “be subject for the same offense
        to be twice put in jeopardy of life or limb. . . .” Article 1, § 10 of the
        Tennessee Constitution provides that “no person shall, for the same offense,
        be twice put in jeopardy of life or limb.”

        ....

               In context, double jeopardy violations arise only when an individual
        is twice placed in jeopardy for the same offense. Customarily, in jury
        proceedings, jeopardy attaches when the jury is sworn, and in nonjury
        proceedings, jeopardy attaches when the first witness testifies. Crist v.
        Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 2160, 57 L. Ed. 2d 24 (1978);
        Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265
        (1975). A defendant must be put in jeopardy at least once, “for only if that
        point has once been reached does any subsequent prosecution of the
        defendant bring the guarantee against double jeopardy even potentially into
        play.” Crist, 437 U.S. at 32-33, 98 S. Ct. at 2159.

                It is well established that jeopardy does not attach in preliminary
        pretrial proceedings. See United States ex rel. Rutz v. Levy, 268 U.S. 390,
        45 S. Ct. 516, 69 L. Ed. 1010 (1925); Collins v. Loisel, 262 U.S. 426, 43 S.
        Ct. 618, 67 L. Ed. 1062 (1923). Rather, to be put in jeopardy, the defendant
        must be “subject to ‘criminal prosecution’ and put to trial.” United States
        v. Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). The proceeding must be
        “essentially criminal” and constitute an action “intended to authorize
        criminal punishment to vindicate public justice.” Id. (citing Breed v. Jones,
        421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975), and
        United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49, 63 S. Ct. 379,
        386, 87 L. Ed. 443 (1943)).

Pennington, 952 S.W.2d at 422.

        The Pennington court concluded by holding, “[i]n sum, the post-arrest detention of
the defendant does not bar the State’s subsequent prosecution of him for the offenses charged
in the indictment.” Id. at 423. The Court reached this holding based upon the conclusion
that the policy was remedial, rather than punitive, because one purpose of the policy was to
keep “suspected drunk drivers off the road for a period of time after arrest.” Id.



                                             -6-
        At issue in Coolidge was another policy of the Davidson County General Sessions
Courts, that persons arrested for DUI had to be held in custody for at least six hours after
arrest before being allowed to be released on bail. The defendant argued that the mandatory
holding period amounted to punishment, thus precluding any further sentence due to double
jeopardy protections. Coolidge, 915 S.W.2d at 822. This court in Coolidge relied upon the
Tennessee Supreme Court’s reasoning in Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988) to
conclude that the six-hour holding rule did not violate rights protected by the constitutional
protections against double jeopardy. Coolidge, 915 S.W.2d at 823 (“the test in Doe v. Norris
would appear to govern the issue presented in this case”). Specifically, the Coolidge Court
said,

               The holding in Doe v. Norris, 751 S.W.2d 834, 839 (Tenn. 1988),
        also provides some guidance:

                       In determining whether the confinement involved . . .
                is punishment . . . [c]ourts must decide whether the
                confinement is imposed for the purpose of punishment or
                whether it is an incident of a legitimate governmental
                purpose. Where . . . no showing of an express intent to
                punish is made . . . “that determination . . . turn[s] on
                ‘whether an alternative purpose to which [the restriction] may
                rationally be connected is assignable for it, and whether it
                appears excessive in relation to the alternative purpose
                assigned.’”

        (Citation omitted).

Coolidge, 915 S.W.2d at 823.

        This Court in Coolidge held that there was nothing in the record to explain why the
policy existed, that is, the purpose of the policy. There was no transcript of any court
hearings and no statement of the evidence. Accordingly, this Court ruled against the
defendant and affirmed the defendant’s conviction for DUI because due to no evidence in
the record as to the purpose of the policy, “the presumptive correctness of the ruling of the
trial court on this constitutional issue must stand.” Coolidge, 915 S.W.2d at 824.

        In the case sub judice we have in the record the complete transcripts of all proceedings
in the trial court. We know from the record that the only reason Defendant was required to
make a $1,000.00 bond twenty-three days after he was charged and released on a
misdemeanor citation is because of the policy of the Shelby County General Sessions

                                              -7-
Criminal Court Judges, which is quoted in this opinion. We know that the only reason
Defendant was detained for approximately five hours was because it took that long for him
to make his bail of $1,000.00.

       What is totally lacking in this record is definitive evidence of the purpose of the
General Sessions Criminal Court policy at issue. Defendant argues in his appellate brief that
the policy violates “the cite and release statute and the Bail Reform Act.” Defendant also
argues that since the policy violates the provisions of the law related to pretrial release, the
policy “cannot by definition be related to a legitimate goal.” Defendant goes on to argue that
this court thus “may infer that the purpose of the pro forma detention was punitive rather than
remedial.”

       We respectfully disagree with Defendant’s analysis. Even if we assume that the
policy does violate certain statutory provisions regarding the manner of pretrial release and
the amount of bond where bail is required, this in and of itself does not mandate the
conclusion that the policy was punitive rather than remedial.

       It is well established that the requirement of bond for pretrial release serves the
accepted purpose of assuring a defendant’s appearance for court proceedings. See State v.
Melson, 638 S.W.2d 342, 358 (Tenn. 1982); see also Tenn. Code Ann. §§ 40-11-116(b)(3),
-117, -118(a) (2006) (providing for bail to be set when necessary to assure a defendant’s
appearance). As found by the trial court, a $1,000.00 bond for charges of DUI and reckless
driving does not seem excessive in relation to the purposes of a bond. There is nothing in
the record to show that Defendant would not have been arrested, with a $1,000.00 bond, had
he not been injured and required to have medical treatment for at least three hours. See Tenn.
Code Ann. § 40-7-118b(1) (which requires in cases such as Defendant’s that the initial
charge must be by citation).

        As stated in Doe v. Norris, “[w]here . . . no showing of an express intent to punish is
made” id. at 839, we must look to see if there is an alternative purpose for the detention
(setting of a bond and the accompanying detention pending release on that bond) to which
the detention may rationally be connected. The record in the case sub judice contains no
evidence of the policy having an express intent to punish Defendant, or others similarly
situated. The general purpose of bond to assure a defendant’s appearance in court meets the
test set forth in Doe v. Norris. As our supreme court in Pennington noted, “[a] policy of
detaining suspected drunk drivers for refusing to submit to a test to determine blood-alcohol
content may, if punitive, implicate certain constitutional protections, but the double jeopardy
clause is not one of them.” Pennington, 952 S.W.2d at 423. Similarly, on the basis of the
record before us, we conclude that the policy at issue here does not implicate the double
jeopardy clause. Defendant is not entitled to relief in this appeal.

                                              -8-
                              CONCLUSION

The judgment of the trial court is affirmed.

                                           _________________________________
                                           THOMAS T. WOODALL, JUDGE




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