                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                 October 3, 2012 Session

             STATE OF TENNESSEE v. KIMBERLY MANGRUM

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Dickson County
                     No. CR7087A      George C. Sexton, Judge


                 No. M2009-01810-SC-R11-CD - Filed March 27, 2013


A Dickson County grand jury returned an indictment charging the defendant with especially
aggravated burglary, especially aggravated kidnapping, first degree premeditated murder, and
first degree felony murder. Later the same day, the grand jury returned a superseding
indictment re-charging the defendant and her husband with the same offenses, but adding a
charge of criminal conspiracy as to each. The prosecution subsequently granted immunity
to the defendant’s step-daughter and issued a subpoena for her appearance, and the grand jury
reconvened to hear her testimony. The defendant filed a motion to quash the subpoena,
arguing that the purpose of the testimony was to improperly acquire evidence to support the
pending charges against her. The trial court denied the motion to quash. After the
defendant’s step-daughter testified before the grand jury, a second superseding indictment
was issued charging all offenses in the first indictment and adding a charge of accessory after
the fact against the defendant’s husband. The defendant then filed motions to suppress any
testimony by the defendant’s step-daughter at trial and to dismiss all pending indictments.
The trial court denied each motion. At the conclusion of the trial, the jury found the
defendant guilty of aggravated burglary, especially aggravated kidnapping, attempted first
degree premeditated murder, and first degree felony murder. After merging the convictions
for attempted premeditated murder and felony murder, the trial court imposed a life sentence
for the murder and concurrent sentences of twenty-five and six years, respectively, for the
especially aggravated kidnapping and the aggravated burglary. On appeal, the defendant
claimed that the trial court should have dismissed the charges because of prosecutorial abuse
of the grand jury process. The Court of Criminal Appeals disagreed and affirmed the
judgment of the trial court. We affirm the judgment of the Court of Criminal Appeals.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Affirmed

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

William B. Lockert, III, District Public Defender, for the appellant, Kimberly Mangrum.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Rachel Harmon, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION
                              I. Facts and Procedural History
                                   A. Initial Investigation
       On September 8, 2002, a fisherman found the body of the victim, later identified as
LeeAnn Mangrum, floating in the Turnbull Creek in Dickson County. The Dickson County
Sheriff’s Office and the Tennessee Bureau of Investigation (“TBI”) searched the bank of the
creek and found hair follicles similar in color to that of the victim. An autopsy revealed
severe blunt force trauma to the head of the victim and bruising to her torso and buttocks, but
indicated drowning as the cause of death.

        On the day following the discovery of the body, the police separately interviewed the
following individuals: Terry Mangrum, Sr. (“Terry Sr.”), the victim’s ex-husband; Kimberly
Mangrum (the “Defendant”), the wife of Terry Sr.; and the two children from the victim’s
marriage to Terry Sr.: daughter A.M.,1 who was eleven years old at the time, and son Terry
Mangrum, Jr. (“Terry Jr.”),2 who was fifteen years old at the time.3 Each of these individuals
denied any involvement in the murder but did tell officers that the victim, accompanied by
a man who had “salt and pepper” hair, had come to their residence to ask for pain pills on the
night before the discovery of her body. The Defendant informed the officers that she had
given the victim a Klonopin pill and speculated that the victim might have also taken her pill
bottle, which was missing after the visit. According to the Defendant, the victim had been
driving a dark-colored Mustang with a Harley-Davidson plate on the front.

       As these interviews took place, officers with the crime scene unit searched the
victim’s trailer, which was in disarray. One of the windows was broken, furniture was


        1
            A.M. is identified by her initials because she was a minor during the events and trial of this case.
        2
         Consistent with the briefs and much of the record, we refer to this individual as “Terry Jr.,”
although he is identified as “Terry Mangrum, II” in other portions of the record.
        3
         Following the victim’s separation from Terry Sr., both Terry Jr. and A.M. initially lived with the
victim. Prior to the events in this case, however, the Tennessee Department of Children’s Services had
granted custody of the children to Terry Sr.

                                                       -2-
overturned, and clothes had been strewn about the interior of the trailer. The officers found
a cigarette butt in the yard outside the trailer that appeared to have been there no longer than
a day or two. The officers also found blood on the exterior of a window and discovered
finger and palm prints on fragments of broken window glass. Despite the evidence of a
struggle, however, the police were initially unable to home in on a suspect.

       A year passed without any significant developments in the investigation. In December
2003, however, the police obtained DNA samples from Terry Sr. and Terry Jr. and
determined that Terry Jr.’s DNA matched that of the blood found on the window. The police
further determined that the fingerprints on the broken glass were those of Terry Jr. and that
the palm print was that of A.M.

        On February 11, 2004, the police obtained a search warrant authorizing the taking of
a DNA sample from the Defendant. During the execution of the warrant, the Defendant
began to describe the events surrounding the murder, stating that she, Terry Jr., and A.M. had
met the victim for lunch approximately two weeks prior to the murder in order to address
their family problems. Without any prompting by the officers, she also related that she had
visited the victim at her trailer and, while there, had smoked cigarettes that would likely
contain her lipstick. After this conversation, the police were able to confirm that a cigarette
butt found in the victim’s yard contained the DNA of the Defendant.

                            B. First Grand Jury Proceeding
       On February 23, 2004, District Attorney General Dan Alsobrooks (the “District
Attorney”) convened a grand jury, which indicted the Defendant for especially aggravated
burglary, especially aggravated kidnapping, first degree premeditated murder, and first
degree felony murder. Later the same day, the grand jury returned a superseding indictment
charging the Defendant and Terry Sr. with each of the offenses described in the original
indictment, but adding charges of criminal conspiracy as to each of those offenses.

       After her arrest and upon having been advised of her Fifth Amendment rights, the
Defendant signed a written waiver of her rights. In a recorded interview, she denied
involvement in the death of the victim and asserted that she suspected Terry Jr. because she
believed that he had taken her car on the day of the murder without asking her permission.
She expressed an awareness that her DNA had been found outside the trailer, explaining that
she and Terry Sr. had been there four or five days before the murder and that she had
disposed of her cigarette butts in the yard. The Defendant repeated her claim that she had
given the victim a Klonopin pill on the night before the murder and also asserted that A.M.
had reported finding “something” in her backpack relating to the death of the victim.

       When the police interviewed A.M., she at first offered the same account she and her

                                              -3-
family had initially provided; however, when the police told her that they knew her claims
were untrue, A.M. recanted, stating that on the day of the murder, Terry Sr. and Terry Jr. had
driven to the victim’s trailer in the Defendant’s Mustang. She told the police that upon their
return, Terry Jr. admitted to her that he had argued with the victim over the custody
arrangement and then killed her. A.M. confessed to the officers that she and her family had
concocted the story about the victim coming by their house asking for pills in an effort to
protect Terry Jr. A.M. also provided the officers with a note, handwritten by Terry Jr., which
she claimed to have found in her backpack. The note, dated February 4, 2004, 2:03 a.m.,
consisted of the following statement: “I Terry W. Mangrum admit to the murder of LeeAnn
Mangrum Smith. She was my mother if you want to call her that. I’m writing this because
the T.B.I. came and took the cigerate [sic] butt of my step mother and a sample of her
DNA.” 4

        On the same day, officers approached Terry Jr. at his high school and, after obtaining
a written waiver of his Fifth Amendment rights, recorded their interview. Terry Jr. claimed
to the officers that he had accidentally driven the victim’s Jeep into a creek and that she was
killed as a result. Terry Jr. mentioned several times during the interview that he was a minor
at the time of the incident and understood that he would be subject to a lesser punishment
because of his age. While doubtful of the authenticity of his claims, the officers took Terry
Jr. into custody.

        C. Motion to Quash Subpoena and Reconvened Grand Jury Proceeding
        Following Terry Jr.’s arrest, his grandparents employed attorneys to represent him and
his sister, A.M. In December 2004, the State, with the intention of reconvening the grand
jury, subpoenaed A.M. to appear and provide testimony regarding the murder. Upon the
advice of her attorney, A.M. refused to testify absent a grant of immunity, which the State
granted in exchange for her testimony before the grand jury and at trial. Afterward, the
Defendant filed a motion to quash the State’s subpoena for A.M.’s testimony before the
grand jury. A.M., through her counsel, joined in the motion to quash. The Defendant
contended that because the State’s real purpose was to further investigate the pending
charges, the subpoena constituted an abuse of the grand jury process.

       At the hearing on the motion, the District Attorney, who was called as a witness by
the Defendant, testified that he did not believe the initial claim by the members of the
Mangrum family that the victim had visited their residence just prior to her death in the
company of “a mysterious man with salt and pepper hair.” He acknowledged that before the
issuance of the subpoena, he had engaged in “extensive conversations” with A.M.’s attorney,


        4
        Terry Jr. testified at trial that he initially wrote the victim’s surname as “Mangrum,” but that the
Defendant made him strike out “Mangrum” and replace it with “Smith,” the victim’s maiden name.

                                                    -4-
which provided him with “some different insight into th[e] case.” Despite his reluctance to
speculate about the testimony A.M. might ultimately offer, the District Attorney
acknowledged that “what [was] proffered [was] additional inculpatory evidence against [the
Defendant].” He recognized that he could have offered A.M. immunity for her testimony at
trial rather than compel her to testify before the grand jury; however, he claimed to have
acted under his belief that A.M.’s testimony might provide a basis for the grand jury to either
add charges against the existing defendants or charge other individuals who may have been
involved in the murder, especially given the “many twists and turns” that had developed
during the course of the investigation. The District Attorney denied any intent to use the
grand jury as “an investigative” body, asserting that his purpose was “re-presenting the case
with the possibility of additional charges being placed [and] the possibility of [adding]
defendants who [the State] might not know of at this point in time.” In a similar vein, the
District Attorney stated that he wanted the grand jury to hear A.M.’s testimony because

       there have been other suspects in this case. . . . [A.M.] should be able to tell
       us with an eyewitness account one of two things, what happened at the time
       her mother was murder[ed] or at a very minimum, if she didn’t go to the scene,
       she would be able to tell us before and afterwards who was involved.

       The District Attorney conceded that calling A.M. to testify before the grand jury
would also further the State’s objective of “know[ing] as much of the truth pretrial as
possible” and that “[i]t is helpful to the [S]tate . . . to know . . . what [witnesses are] going
to say under oath.”

        The grand jury foreman, called as a witness by the State, testified that the purpose of
the proceeding was to hear testimony from A.M. in an effort to learn “[w]ho was involved
in this case and to what extent they were involved.” The foreman explained that determining
who should be indicted and on what charges had been “difficult because it was all family
involved. Initially [Terry Jr.] was the one supposed to have been alleged to have done it; but
during the time [of] this investigation [it was discovered that] there were more persons
involved, so we’d like to know how many and who they are.”

       At the conclusion of the hearing, the trial court denied the motion to quash the
subpoena.5 Declining to apply the traditional rule that a grand jury subpoena is subject to
being quashed if its dominant purpose is to conduct discovery on pending charges, the trial
court held that no abuse of the grand jury process occurred because discovery was “not the
sole purpose” of the subpoena. (Emphasis added.)


       5
         Judge Robert E. Burch presided over the hearing on the motion to quash and issued the order
denying the motion. In all subsequent proceedings, Judge George C. Sexton presided.

                                                -5-
        Following the denial of the motion, the grand jury reconvened on January 20, 2005,
to hear the testimony of A.M. Initially, A.M., who was fourteen years old at the time,
confirmed her understanding that she had been granted immunity from all possible charges
related to the murder. A.M. testified that despite some “bad times,” she had a good
relationship with the victim even though the victim had hit her in the past and may have
sexually abused her. In contrast, she described her relationship with the Defendant as
“terrible,” claiming that the Defendant subjected her and her brother, Terry Jr., to extreme
physical abuse. A.M. asserted that the Defendant had forced her to call both the victim and
the victim’s father to say that she “hate[d] them and wish[ed] they would die.” She
contended that she and Terry Jr. lived in fear of the Defendant, who would physically abuse
them and threaten to have them killed if they did not follow her orders. A.M. testified that
the Defendant frequently made negative comments about the victim, calling her a “prostitute”
and a “slut” and often threatening to kill her. A.M. insisted that her father, Terry Sr., had no
knowledge of the Defendant’s misbehavior. She further testified that on the night of
September 7, 2002, after Terry Sr. had gone to bed, the Defendant, who had “gloves and stuff
like that” in her possession, forced her and Terry Jr. to get in her car in an effort to find the
victim. According to A.M., the Defendant first drove to the victim’s trailer but did not find
her there. As she drove away, however, the Defendant saw the victim drive by in her Jeep,
turned, followed the victim back to the trailer, and ordered A.M. and Terry Jr. to put on
gloves. A.M. told the grand jury that the Defendant then took a baseball bat from the back
seat, ordered Terry Jr. out of the car, and used the bat to break the driver-side window of the
Jeep. When the victim tried to drive away, the Defendant dragged her out of the car into the
yard, repeatedly struck her with the bat, and ordered Terry Jr. to hit her with a piece of wood.
According to A.M., when Terry Jr. initially refused to strike the victim, the Defendant, who
was smoking a cigarette, threatened to beat him.

        A.M. described the victim as “bleeding” and “unconscious” from the assault. She
stated that the Defendant instructed her and Terry Jr. to help move the victim into the Jeep.
As the Defendant drove her Mustang to a nearby creek, Terry Jr. followed her in the Jeep.
After arriving at the creek, A.M., Terry Jr., and the Defendant moved the victim from the
back seat of the Jeep to the creek bank. A.M. stated that the Defendant then instructed her
to take a medicine bag from the Mustang and to stuff pills down the victim’s throat. A.M.
explained that when she was shaking so badly that she was unable to perform as directed, the
Defendant forced the pills into the victim’s mouth and rolled her into the creek. A.M. told
the grand jury that the Defendant threatened to “kill [her and Terry Jr.] in the same way or
even worse” if they ever told anyone what had happened and, after a few minutes, instructed
Terry Jr. to go into the creek to “make sure [the victim was] dead.” When Terry Jr. refused,
the Defendant threatened him, shoved him into the water, and watched as Terry Jr. held the
victim under water with his foot. The Defendant then drove the Jeep into the creek.
Afterward, the Defendant drove her Mustang back to the victim’s trailer, and, according to

                                               -6-
A.M., directed Terry Jr. to break a window in the back and made A.M. crawl through the
window to open the entry door from the inside. A.M. recalled that Terry Jr. may have cut his
arm when he broke the window. She further testified that the Defendant went inside to
smash several of the victim’s possessions, such as pictures and furniture, and forced her and
Terry Jr. to take jewelry and other valuables. A.M. stated that at some point the Defendant
directed A.M. to call her maternal grandmother, using the victim’s cell phone. Although
A.M. could not remember what she had said to her grandmother, she testified during the
grand jury proceeding that the Defendant instructed her to pretend to be the victim and told
her what to say. Eventually, they left the trailer and returned to their residence.

       According to A.M., when the Defendant informed Terry Sr. of the murder, he became
upset and began to argue loudly with the Defendant. A.M. also remembered that roughly one
month after the murder, she, Terry Jr., and the Defendant threw the baseball bat used during
the murder into a creek located near their residence.

       After hearing the testimony of A.M., the grand jury returned a second superseding
indictment, charging the Defendant and Terry Sr. with the same offenses listed in the first
superseding indictment, but adding a count against Terry Sr. for accessory after the fact.6

                            D. Motions to Suppress and Dismiss
       On March 9, 2005, the Defendant filed a motion to suppress the trial testimony of
A.M. on the basis that the District Attorney had abused the grand jury process by compelling
A.M. to testify for the purpose of investigating the pending charges. On March 14, 2005, the
Defendant filed a motion to dismiss all indictments against her based upon the alleged abuse
of process. During the hearing on the motions before the trial court, the defense called as a
witness the grand jury foreman, who testified that the grand jury had reconvened to hear
testimony from A.M. because the jurors “felt there was additional information needed in
order to find out exactly what occurred.” When asked what changes the grand jury made to
the indictment following the January 20th proceeding, the foreman stated that a correction
was made to the name of Terry Jr.7 and that Terry Sr. was charged with a new count of
accessory after the fact. He further stated that he believed “the truth was revealed” through
A.M.’s testimony and concluded that A.M.’s grand jury testimony “added” significantly to
the information previously provided by the investigating officers and “made it clearer as to

        6
          The second superseding indictment charges “Terry Mangrum” but does not specify to which Terry
Mangrum it refers; however, the date of birth on the second superseding indictment, the judgment against
Terry Sr., and statements by counsel during a later hearing all indicate that the second superseding indictment
refers to Terry Sr. Terry Jr. was charged in a separate indictment.
        7
        As noted above, the record reflects that Terry Jr. was charged in a separate indictment from the
Defendant and Terry Sr.; however, the indictment charging Terry Jr. was not included in the appellate record.

                                                     -7-
what the situation really was.”

       At the conclusion of the proof on the motions to suppress and dismiss, the trial court8
refused to grant relief:

              [B]ased upon what I’ve heard from [the grand jury foreman], I can’t
       find that . . . calling [A.M.] was . . . for the sole and dominant purpose of
       discovering facts, based on the defendants’ previous indictment.

       ....

              So . . . finding that [A.M.] was not called for the sole purpose of
       obtaining inculpatory information and the defendant having the burden of
       proof showing that was the sole purpose of calling the witness to testify, the
       motions are overruled.

(Emphasis added.)

                                    E. Trial and Appeal
        The trial of the Defendant on the second superseding indictment was severed from
that of each of her co-defendants. Robert C. Smith, a witness for the State, testified that on
Saturday, September 7, 2002, he met the victim and a few other friends at a local bar to
watch a football game. He recalled that the victim left between 11:30 p.m. and midnight.
The victim’s mother, Betty Wade, testified that the victim had called her between 9:00 and
9:30 p.m. on the same night to make arrangements to attend church the next morning. She
stated that she received a call from the victim’s cell phone at 5:20 a.m. on the following
morning, but no one was on the line. When she returned the call, she heard someone other
than the victim say, “Mamma, please, help me. I’m scared. . . . [H]elp me, I’m afraid.”
While acknowledging that there was “something familiar about the voice,” Ms. Wade was
unable to recognize the caller. Alarmed by the call, Ms. Wade immediately contacted Agnes
Sullivan, a neighbor of the victim.

       Ms. Sullivan testified that when she received the call from Ms. Wade, she looked
outside but did not see the victim’s Jeep at her trailer. Later in the day, Ms. Sullivan, who
had a key to the trailer, entered the trailer and discovered that the furniture had been knocked
over and that there was broken glass on the floor.

       A.M., also called as a witness for the State, provided testimony at the trial practically

       8
           As indicated, Judge George C. Sexton presided over the hearing on these motions.

                                                   -8-
identical to that she had presented to the grand jury in the January 20, 2005 proceeding.
Terry Jr., who by the time of the trial had pled guilty to a reduced charge of second degree
murder, also testified on behalf of the State. He contended that there had been “bad blood”
between the Defendant and the victim, which had resulted in several altercations over a
period of time. He acknowledged that the Defendant had abused him and his sister numerous
times, specifically recalling that on one occasion the Defendant had burned him severely with
a cigarette and, on another, had cut his throat with a coat hanger. He asserted that the
Defendant had subjected A.M. to similar abuse and orchestrated phone calls in which A.M.
was forced to make hateful comments to the victim. Terry Jr.’s testimony corroborated
A.M.’s account of the murder in that he said the Defendant grabbed the victim by her hair,
dragged her from the Jeep, and struck her repeatedly with a baseball bat. Terry Jr. further
claimed that the Defendant “made [him] hit” the victim with a piece of wood despite his
initial reluctance to do so, and he conceded that he had held the victim under water to make
sure that she was dead, explaining that he had done so at the Defendant’s insistence. Terry
Jr. confirmed that he and A.M. accompanied the Defendant back to the trailer, gained entry
by breaking a window, and ransacked the interior, taking certain valuables. He said that
afterward, the Defendant forced him and his sister to thoroughly clean the Mustang.

        Terry Jr. further testified that the Defendant had fabricated the story about the victim
visiting the Mangrum house looking for pain pills on the night before the murder. He
claimed that the Defendant had threatened to kill him and A.M. if they did not stick to that
story when interviewed by the police. Terry Jr. acknowledged that after the police obtained
the Defendant’s DNA sample, he wrote a note dated February 4, 2004, in which he claimed
sole responsibility for the murder, but he contended that he had done so only after the
Defendant threatened him at knifepoint. After the State produced a recording of the police
interview in which Terry Jr. confessed that he had acted alone in the murder, Terry Jr.
explained that he had lied to the police during the interrogation at the insistence of the
Defendant, who had threatened to kill him and had informed him that, because he was a
minor, he would spend only a few years in prison.

        Ronald Durham, a neighbor of the Mangrums, was called as a witness for the State
to corroborate a portion of Terry Jr.’s testimony. He confirmed that on the day of the murder
he had seen Terry Jr. and A.M. spend hours cleaning the Mustang. TBI Agent Joe Minor
verified that the DNA on the cigarette butt recovered from the victim’s yard matched the
Defendant’s DNA sample. He also confirmed that the DNA obtained from the blood on the
window of the victim’s trailer matched that of Terry Jr. Agent Hoyt Phillips, a fingerprint
examiner in the forensic division of the TBI, testified that the fingerprints recovered from the
piece of broken window glass found at the trailer were those of Terry Jr., and the palm print
was that of A.M. Dr. Thomas Deering, the forensic pathologist who performed the autopsy,
testified that he discovered severe blunt force trauma to the victim’s head and contusions on

                                              -9-
her torso and buttocks, all of which were consistent with multiple blows from a baseball bat.
In his opinion, however, drowning was the cause of her death.

        At the conclusion of the State’s proof, the trial court acquitted the Defendant of
especially aggravated burglary but allowed the State to proceed on the lesser included offense
of aggravated burglary, as well as the other charges in the second superseding indictment.
The jury returned guilty verdicts for aggravated burglary, especially aggravated kidnapping,
attempted first degree premeditated murder, and first degree felony murder. After merging
the attempted premeditated murder conviction with the felony murder conviction, the trial
court imposed concurrent sentences as follows: life imprisonment for the felony murder
conviction, twenty-five years for the especially aggravated kidnapping conviction, and six
years for the aggravated burglary conviction.9

       In her appeal to the Court of Criminal Appeals, the Defendant challenged the
sufficiency of the evidence and asserted prosecutorial abuse of the grand jury process. The
Court of Criminal Appeals affirmed the judgment of the trial court. State v. Mangrum, No.
M2009-01810-CCA-R3-CD, 2011 WL 5387594, at *9 (Tenn. Crim. App. Nov. 9, 2011).
This Court granted review to address the proper scope and use of grand jury proceedings,
which is an issue of first impression.

                                     II. Analysis
      This appeal requires a determination of whether the trial court erred by denying the
motion to quash the subpoena for A.M. to provide grand jury testimony or by denying the
motions to suppress A.M.’s trial testimony and to dismiss all indictments against the
Defendant.

                     A. Purpose and Scope of Grand Jury Proceedings
         The grand jury—an institution with common-law roots dating back to twelfth-century
English law—has traditionally served a screening function in the criminal law, with the
purpose of evaluating evidence of criminal offenses and returning an indictment if, and only
if, the evidence establishes probable cause that a crime was committed and that the accused
committed the crime. See Black’s Law Dictionary 767 (9th ed. 2009) (quoting Frank W.
Miller et al., Cases and Materials on Criminal Justice Administration 546 (3d ed. 1986)); W.
Mark Ward, Tennessee Criminal Trial Practice § 11-2, at 263-65 (2009-2010 ed.)
[hereinafter Ward]. In order to ensure the role of the grand jury “as a ‘shield’ protecting
citizens from unjust prosecution,” Ward § 11-2, at 264, our Constitution provides “[t]hat no
person shall be put to answer any criminal charge but by presentment, indictment or


        9
          Some time after the Defendant’s trial, Terry Sr. pled guilty to accessory after the fact, and the State
voluntarily dismissed the remaining charges against him in the second superseding indictment.

                                                      -10-
impeachment.”10 Tenn. Const. art. I, § 14. One hundred and sixty-five years ago, this Court
explained that

        the object of this provision . . . [is] to guarantee to every freeman the great
        privilege and security of not being put to answer any criminal charge affecting
        the right to life or liberty without a written accusation, previously verified by
        the oath of a grand jury, in the form of a presentment or indictment.

McGinnis v. State, 28 Tenn. (9 Hum.) 43, 47-48 (1848); see also 9 David Louis Raybin,
Tennessee Practice: Criminal Practice and Procedure § 9.3, at 268 (2008) [hereinafter
Raybin] (“The grand jury is said to stand between the accuser and the accused . . . .”).

        Consistent with the traditional purpose of the grand jury and the constitutional
mandate of article I, section 14, a Tennessee grand jury “has inquisitorial powers over—and
has the authority to return a presentment—of all indictable or presentable offenses found to
have been committed or to be triable within the county.” Tenn. R. Crim. P. 6(d). The duties
of the grand jury include, among other things, inquiring into, considering, and acting on all
criminal cases submitted to it by the district attorney general (the “district attorney”);
inquiring into any report of a criminal offense brought to its attention by a member of the
grand jury; and reporting the results of its actions to the trial court.11 Tenn. R. Crim. P. 6(e).

        The grand jury may work with, but not for, the district attorney. Stanley v. State, 104
S.W.2d 819, 822 (Tenn. 1937) (“The grand jury is not an agency of the district attorney or
of the court.”); see also Raybin § 9.3, at 268 (noting the independence of the grand jury from
the district attorney). Witnesses may be subpoenaed to appear by either the grand jury or the
district attorney. Tenn. R. Crim. P. 6(g)(4)(B)–(C), (i)(2), (j)(1). A witness who refuses to
provide grand jury testimony may be compelled to testify, but only if the district attorney
grants the witness immunity from prosecution for any offense related to the subject of his or
her testimony; similarly, any witness compelled to testify before the grand jury is


        10
          The Fifth Amendment to the United States Constitution offers similar protection, providing that
“[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or
indictment by a Grand Jury.” U.S. Const. amend. V. This provision, however, does not apply to state
proceedings. Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Hurtado v. California, 110 U.S. 516, 538
(1884).
        11
            Tennessee statutory law also provides for the assembly of an investigative grand jury, which is
authorized to investigate certain enumerated offenses, such as money laundering, bribery, and misconduct
involving public officials. See Tenn. Code Ann. § 40-12-201(a) (2012). It is undisputed that the grand jury
in this instance was not of the investigative variety and that the provisions pertaining to investigative grand
juries, see id. §§ 40-12-201 to -218, do not apply.

                                                     -11-
automatically entitled to immunity from indictment for any offense related to the testimony
provided. See Tenn. R. Crim. P. 6(j)(5)–(6); State v. McCollum, 904 S.W.2d 114, 117
(Tenn. 1995). The district attorney or a designated assistant is authorized to attend grand jury
proceedings for the purpose of examining witnesses and providing legal advice to the grand
jury. Tenn. Code Ann. § 8-7-501 (2011); Tenn. R. Crim. P. 6(h)(1). However, neither the
district attorney nor any other person may be present when the grand jurors vote on an
indictment or presentment. Tenn. Code Ann. § 8-7-501; Tenn. R. Crim. P. 6(h)(1).

        Each grand jury consists of twelve grand jurors and a foreperson, for a total of thirteen
members. Tenn. R. Crim. P. 6(a)(1). The foreperson acts as the spokesperson for the grand
jury but has the same voting power as any other grand jury member. See State v. Bondurant,
4 S.W.3d 662, 674-75 (Tenn. 1999) (quoting State v. Jefferson, 769 S.W.2d 875, 877-78
(Tenn. Crim. App. 1988)). The return of an indictment requires the concurrence of at least
twelve of the members of the grand jury. Tenn. Code Ann. § 40-13-105 (2012). Prior to
indictment, the district attorney “has virtually unbridled discretion in determining whether
to prosecute and for what offense.” Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978)
(quoting Pace v. State, 566 S.W.2d 861, 867 (Tenn. 1978) (Henry, C.J., concurring)); see also
State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (“‘[S]o long as the prosecutor has probable
cause to believe that the accused committed an offense . . . , the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely within
his discretion.’” (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (second
alteration in original))). Upon the return of an indictment, however, “the disposition of the
charge becomes a judicial function.” Dearborne, 575 S.W.2d at 262 (quoting Pace, 566
S.W.2d at 867 (Henry, C.J., concurring)). Nevertheless, even after the return of an
indictment, the district attorney retains the discretion to reconvene the grand jury for
consideration of additional evidence and the possible return of a superseding
indictment—that is, an indictment obtained without the dismissal of a prior indictment.
Harris, 33 S.W.3d at 771. In Harris, this Court described the procedure as follows:

               The power to seek a superseding indictment lies within th[e] broad
       discretion of the State. . . . Where there has been no jeopardy on the first
       indictment, a grand jury may return a new indictment against an accused even
       though another indictment is pending. Although the State may not bring a
       superseding indictment to harass or intimidate the accused, a legitimate
       decision to bring a superseding indictment is uniquely within the State’s
       authority. Thus, the State may obtain a superseding indictment at any time
       prior to trial without dismissing the pending indictment and may then select the
       indictment under which to proceed at trial.

Id. (citations and footnote omitted). This Court cautioned, however, that “the discretion of

                                              -12-
the State is not infinite,” and pointed out that trial courts retain the authority to dismiss an
indictment based upon defects in the indictment or improper delay in presenting a charge to
a grand jury. Id.

        As the Court of Criminal Appeals observed in the case before us, a number of state
and federal courts have recognized that “‘it is improper to use the grand jury for the purpose
of preparing [a case on] an already pending indictment for trial.’” Mangrum, 2011 WL
5387594, at *8 (quoting 2 Sara Sun Beale et al., Grand Jury Law and Practice § 9:16, at 9-71
(2d ed. 2005) [hereinafter Beale]) (alteration in original). The courts that have addressed this
issue have concluded, almost without exception, that the proper inquiry is whether the
“dominant” or “primary”12 purpose of the grand jury proceeding at issue is to conduct
discovery related to pending charges in preparation for trial. See, e.g., United States v.
Salameh, 152 F.3d 88, 109 (2d Cir. 1998) (per curiam) (“It is improper for the government
to use a grand jury subpoena for the sole or dominant purpose of preparing for trial.” (quoting
United States v. Sasso, 59 F.3d 341, 351 (2d Cir. 1995) (internal quotation marks omitted)));
United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir. 1992) (“A court may not interfere
with the grand jury’s investigation ‘[s]o long as it is not the sole or dominant purpose of the
grand jury to discover facts relating to [a defendant’s] pending indictment.’” (quoting United
States v. George, 444 F.2d 310, 314 (6th Cir. 1971) (alterations in original))); In re Grand
Jury Proceedings (Fernandez Diamante), 814 F.2d 61, 70 (1st Cir. 1987) (“It is well
established that a grand jury may not conduct an investigation for the primary purpose of
helping the prosecution prepare indictments for trial.”); United States v. Moss, 756 F.2d 329,
332 (4th Cir. 1985) (“Although the courts firmly safeguard the investigatory power of the
grand jury, it is the universal rule that prosecutors cannot utilize the grand jury solely or even
primarily for the purpose of gathering evidence in pending litigation.”); Bishop v. Caudill,
87 S.W.3d 1, 4 (Ky. 2002) (holding that an abuse of the grand jury process occurs “if the sole
or dominant purpose of [a] grand jury investigation is to discover facts relating to [an
accused’s] defense so as to assist the Commonwealth in its trial preparation”); Hynes v.
Lerner, 376 N.E.2d 1294, 1296 (N.Y. 1978) (“[O]nce an indictment is issued, a Grand Jury
subpoena duces tecum may not be used for the sole or dominant purpose of preparing the
pending indictment for trial.”).

        This Court has previously explained that the function of the grand jury is limited to
“determin[ing] whether or not there is sufficient evidence to justify bringing an accused to
trial.” State v. Felts, 418 S.W.2d 772, 774 (Tenn. 1967). In recognition of this limitation on
the scope of the proceedings of a grand jury, we approve the rule adopted by numerous other
state and federal courts that prosecutorial abuse of the grand jury process occurs when the


       12
          It appears that several courts addressing this issue use the terms “dominant” and “primary”
interchangeably. For the sake of consistency, we will adhere to the more commonly used term “dominant.”

                                                 -13-
dominant purpose of a grand jury proceeding is to investigate a defendant for an offense for
which he or she has already been indicted.13

        An essential consideration in the application of this rule is that grand jury proceedings
must be accorded a presumption of regularity. See Smith v. State, 369 S.W.2d 537, 539
(Tenn. 1963); see also United States v. R. Enters., Inc., 498 U.S. 292, 300 (1991) (“[T]he law
presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate
scope of its authority.”). In observance of this presumption of regularity, trial courts must
place upon a defendant alleging abuse of the grand jury process the burden of demonstrating
that the dominant purpose of the proceeding is to seek information related to pending charges
in order to prepare for trial. See Smith, 369 S.W.2d at 539; Breitkreutz, 977 F.2d at 217. If
there is a legitimate dominant purpose for a grand jury proceeding, such as the presentation
of new evidence for the grand jury to consider in determining whether to file new charges,
then the presumption of regularity will persist, notwithstanding the fact that evidence
adduced at the proceeding is also helpful to the State in its preparation for trial as to pending
charges. See Sasso, 59 F.3d at 351-52; Hynes, 376 N.E.2d at 1296.

        Moreover, a defendant alleging abuse of the grand jury process will generally be
unable to overcome the presumption of regularity if the proceeding at issue results in the
indictment of a previously uncharged individual or the return of additional charges against
a previously indicted defendant. As the First Circuit Court of Appeals has observed, “These
are purposes befitting the accepted institutional objectives of the grand jury, and their
presence bears convincing witness to the propriety of the prosecutor’s stewardship.” United
States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001). Thus, when a grand jury proceeding
results in new charges that are supported by evidence presented at that proceeding, it is
typically appropriate to uphold the presumption of regularity. See id.; United States v. Scott,
784 F.2d 787, 792 (7th Cir. 1986) (per curiam) (“The subsequent indictment of [a previously
unindicted individual] shows that the grand jury was not solely or predominantly used to
investigate [pending charges].”); Anne Bowen Poulin, Supervision of the Grand Jury: Who
Watches the Guardian?, 68 Wash. U. L.Q. 885, 908 n.80 (1990) (“[R]eturn of an indictment
by the challenged grand jury will defeat the defendant’s claim of improper use.”).

        When an abuse of the grand jury process does occur, the appropriate remedy “depends

        13
           We recognize that several jurisdictions have adopted the “sole or dominant purpose” test for
adjudicating claims of prosecutorial abuse of the grand jury process. Articulating the standard in this way,
however, is unnecessarily redundant because if a grand jury proceeding with the dominant purpose of
conducting discovery on pending charges is improper, then it necessarily follows that a grand jury proceeding
with the sole purpose of conducting this type of discovery is also improper. Thus, to promote clarity, the
standard we have adopted asks only whether the dominant purpose of the grand jury proceeding was
improper.

                                                    -14-
upon when the abuse is discovered.” Beale § 9:16, at 9-77. If a trial court is alerted to an
abuse of process prior to a challenged grand jury proceeding, the proper remedy is to quash
the offending subpoena. Id.; see also Bishop, 87 S.W.3d at 3 (“If the purpose of subpoenaing
[the witnesses] before the grand jury is to use the grand jury proceedings as a guise for trial
preparation, the subpoenas must be quashed.” (citing In re Grand Jury Proceedings
(Fernandez Diamante), 814 F.2d at 70)). If the trial court finds an abuse of process after the
grand jury proceeding but before trial, the usual remedy is suppression of the improperly
discovered evidence. See Flemmi, 245 F.3d at 27; United States v. Kovaleski, 406 F. Supp.
267, 271 (E.D. Mich. 1976). A claim of abuse of the grand jury process presented in a
motion for a new trial or on appeal is subject to harmless error analysis. See United States
v. Jenkins, 904 F.2d 549, 559-60 (10th Cir. 1990); see also Tenn. R. App. P. 36(b).

                                    B. Motion to Quash
       Now having recognized the appropriate rule and its application at various stages of
the proceedings, this Court may address the Defendant’s assertion that the trial court applied
the incorrect legal standard when denying her motion to quash the subpoena for A.M. to
provide grand jury testimony. The Defendant maintains that the District Attorney’s
knowledge that A.M.’s grand jury testimony would provide inculpatory evidence against the
Defendant establishes that the dominant purpose for the issuance of the subpoena was to
gather information in support of the charges in the first superseding indictment. In response,
the State contends that the District Attorney subpoenaed A.M. to testify before the
reconvened grand jury for the legitimate purpose of considering whether to issue a second
superseding indictment with new charges.

       Our standard of review of a ruling on a motion to quash is whether the trial court
committed an abuse of discretion. State v. Hester, 324 S.W.3d 1, 53 (Tenn. 2010). An abuse
of discretion occurs when the trial court (1) applies an incorrect legal standard, (2) reaches
an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous
assessment of the evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

       In this instance, the trial court applied the incorrect standard in its ruling on the motion
to quash. Instead of adhering to the widely recognized rule that a grand jury proceeding is
improper if its dominant purpose is to discover information related to pending charges in
preparation for trial, the trial court fashioned a more demanding standard for demonstrating
prosecutorial misconduct, denying the motion to quash because the discovery of information
related to pending charges was not the “sole” purpose of the subpoena. By application of the
correct standard, however, we do not hesitate to conclude that the Defendant failed to carry
her burden of rebutting the presumption that the District Attorney had a legitimate dominant
purpose for the issuance of the subpoena for A.M. to testify before the grand jury.



                                               -15-
       The fact that A.M.’s attorney had previously related to the District Attorney the
content of her testimony suggests that the dominant purpose of the subpoena was to allow
the grand jury to act on her testimony, and not to discover information of which the District
Attorney was already aware. Further supporting this conclusion is the District Attorney’s
testimony that he could have simply offered A.M. immunity for her testimony at trial but
chose instead to have her testify first before the grand jury in order to allow consideration “of
additional charges being placed [and] the possibility of [adding] defendants who [the State]
might not know of at this point in time.”

        In addition, as the District Attorney testified, the extended investigation leading up
to the January 20, 2005 grand jury proceeding did, in fact, involve several “twists and turns.”
The members of the Mangrum family provided the police with at least three different
versions of the events leading up to the murder of the victim: (1) the initial story in which the
victim purportedly went to the Mangrum residence looking for pain pills on the night before
the murder; (2) the narrative in which Terry Jr., possibly accompanied by Terry Sr., killed
the victim and did so without any involvement by the Defendant or A.M.; and (3) the version
in which the Defendant murdered the victim with the compelled assistance of Terry Jr. and
A.M. These conflicting accounts frustrated the grand jury’s ability to ensure that the various
members of the family would be brought to trial on the appropriate charges, as indicated by
the grand jury foreman’s testimony that determining the appropriate charges had proved to
be an exceedingly difficult task and that the grand jurors sought to learn from A.M. “[w]ho
was [actually] involved in [the murder, kidnapping, and burglary] and to what extent they
were involved.” It is our view that the District Attorney acted within his discretion by
compelling testimony from a witness with first-hand knowledge so that the grand jury could
assess her credibility in determining who should be brought to trial and on what charges. See
Harris, 33 S.W.3d at 771; Felts, 418 S.W.2d at 774. The fact that A.M.’s testimony resulted
in a new charge of accessory after the fact against Terry Sr. further supports this conclusion.
See Flemmi, 245 F.3d at 28.

         In making this determination, this Court acknowledges that A.M.’s testimony before
the grand jury provided a substantial collateral benefit to the State. As the District Attorney
candidly conceded, compelling A.M. to testify before the grand jury produced information
relevant to the pending charges against each of the defendants—inculpatory information as
to the Defendant and Terry Jr., and largely exculpatory information in regard to Terry Sr.
Further, A.M.’s grand jury testimony offered a preview of her trial testimony and provided
a means of impeachment should she later attempt to change her account of the murder. It is
well established, however, that so long as the dominant purpose of a grand jury proceeding
is proper, the State is entitled to use any evidence adduced during the grand jury proceeding
at trial. See Sasso, 59 F.3d at 351-52 (“Where there was some proper dominant purpose for
the postindictment subpoena, . . . the government is not barred from introducing evidence

                                              -16-
obtained thereby.”); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir. 1979)
(“[W]here there is another legitimate purpose behind the grand jury investigation, the
proceeding would not be improper merely because the Government may derive an incidental
benefit.”); Beale § 9:16, at 9-74 (“[I]t is settled that if, in the course of . . . legitimate
investigative efforts, the prosecution obtains evidence that is relevant to the pending case,
it can use that evidence at trial.”). Here, the Defendant has not shown that the legitimate
purpose of the January 20, 2005 proceeding—presenting A.M.’s testimony to assist the grand
jury in its duties—was subservient to any investigation of the pending charges against her.
Therefore, the incidental benefits to the State in the form of discovery do not, under these
circumstances, establish that the trial court should have granted the motion to quash, even
if it had applied the correct legal standard.

                           C. Motions to Suppress and Dismiss
       In a closely related issue, the Defendant next argues that following the January 20,
2005 grand jury proceeding during which A.M. provided her testimony, the trial court erred
by denying her motions to suppress any trial testimony by A.M. and to dismiss all pending
indictments. According to the Defendant, the inculpatory nature of A.M.’s testimony with
regard to the pending charges against the Defendant substantiates her claims.

        When the trial court makes findings of fact after a motion to suppress, its conclusions
are binding upon this Court unless the evidence in the record preponderates otherwise. See
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). As a general rule, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. When the
findings of fact are based entirely on evidence that does not involve issues of witness
credibility, an appellate court conducts a de novo review. State v. Binette, 33 S.W.3d 215,
217 (Tenn. 2000). Review of a trial court’s application of law to the facts is de novo with
no presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)). We review a trial court’s ruling on
a motion to dismiss an indictment under the abuse of discretion standard. Harris, 33 S.W.3d
at 769-70.

        As with the motion to quash, the Defendant’s claims pertaining to her subsequent
motions to suppress and dismiss are without merit. Consistent with his previous testimony,
the grand jury foreman stated at the hearing on the motions to suppress and dismiss that the
grand jury had reconvened to hear testimony from A.M. because the jurors “felt there was
additional information needed in order to find out exactly what occurred.” Based upon the
new information provided by A.M., the grand jury issued a second superseding indictment
adding a new charge of accessory after the fact against Terry Sr., which is highly probative
of the legitimacy of the purpose of the grand jury proceeding. See Flemmi, 245 F.3d at 28;

                                             -17-
Scott, 784 F.2d at 792. Moreover, the new accessory after the fact charge against Terry Sr.
was consistent with A.M.’s grand jury testimony that Terry Sr. did not participate in the
murder but discussed it with the Defendant upon her return to their residence. Eventually,
Terry Sr. pled guilty to the charge of accessory after the fact, and the State voluntarily
dismissed the remaining charges against him.

         The circumstances surrounding the grand jury testimony in this case are in stark
contrast to those in the “very few” cases in which courts have found an abuse of the grand
jury process predicated upon improper trial preparation. Beale § 9:16, at 9-76. In a Second
Circuit Court of Appeals case, for example, the prosecutor initially subpoenaed a witness to
produce evidence at an upcoming trial. In re Grand Jury Subpoena Duces Tecum Dated Jan.
2, 1985 (Simels), 767 F.2d 26, 28 (2d Cir. 1985). After the trial subpoena proved ineffective,
the witness “received a grand jury subpoena seeking the very same materials described in the
trial subpoena.” Id. The court reasoned that these circumstances showed that the dominant
purpose of the grand jury subpoena was to conduct discovery in preparation for the upcoming
trial, and that the prosecutor’s stated purpose for the subpoena—to obtain evidence “relevant
to the grand jury’s investigation, such as the identification of co-conspirators”—was
subservient to the dominant purpose of “pretrial preparation.” Id. at 29-30. Similarly, in In
re National Window Glass Workers, prosecutors attempted to use grand jury subpoenas to
obtain testimony and other evidence relevant to pending charges involving an alleged
price-fixing conspiracy. 287 F. 219, 221-22 (N.D. Ohio 1922). The prosecutors claimed that
the evidence could support a new indictment, but the district court found this assertion to be
pretextual in light of the prosecutors’ stated desire to immediately try the defendants on the
pending indictment and “not to try anybody on a new indictment, except in a remote future
contingency.” Id. at 223-24; see also In re Matter of Grand Jury Subpoenas Issued May 3,
1994 for Nash, 858 F. Supp. 132, 135-36 (D. Ariz. 1994) (sustaining objection to the timing
of grand jury subpoenas seeking testimony of attorneys regarding fees paid by clients against
whom drug charges were pending); Bishop, 87 S.W.3d at 4 (reversing determination that no
grand jury abuse had occurred and remanding for an evidentiary hearing where the trial court
had refused the defendant’s request to question the prosecutor as to the purpose of the
challenged grand jury proceeding).

        Unlike these few cases in which the grand jury either had been or may have been used
for an improper purpose, the Defendant did not demonstrate in this instance that the
legitimate purpose for the grand jury proceeding offered by the State—to present the
testimony of A.M. to assist the grand jury’s assessment of what charges to bring in a possible
superseding indictment—was either pretextual or subservient to the purpose of preparing for
trial on the pending charges. In our view, the Defendant failed to overcome the presumption
of regularity by establishing that the dominant purpose of the proceeding was to discover
facts related to the pending charges for use at trial. Given the totality of the relevant

                                             -18-
circumstances, particularly the fact that Terry Sr. was appropriately charged with an
additional count of accessory after the fact as a consequence of the January 20, 2005
proceeding, the trial court, in our assessment, did not err by denying the Defendant’s motion
to suppress and motion to dismiss.14

                                    III. Conclusion
      In summary, the Defendant failed to demonstrate that the District Attorney acted
improperly by compelling the testimony of A.M. in the January 20, 2005 grand jury
proceeding, and the trial court properly denied the motions by the Defendant alleging
prosecutorial abuse of the grand jury process. The judgment of the Court of Criminal
Appeals is, therefore, affirmed. It appearing that the Defendant is indigent, costs are
adjudged against the State.




                                                  _________________________________
                                                  GARY R. WADE, CHIEF JUSTICE




        14
           The Defendant additionally asserts that the District Attorney’s purported misconduct resulted in
a denial of her right to due process and violated “principles of fundamental fairness.” Of note, the Defendant
provides no authority suggesting that her claims are of constitutional magnitude. In any event, having
determined that the District Attorney did not abuse his discretion in this case, we need not address whether
an abuse of the grand jury process may result in the deprivation of a defendant’s right to due process or any
other constitutional right. See State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002) (“[C]ourts do not decide
constitutional questions unless resolution is absolutely necessary to determining the issues in the case and
adjudicating the rights of the parties.”).

                                                    -19-
