                                                                                          05/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               February 26, 2019 Session

          STATE OF TENNESSEE v. PAUL THOMAS WELCH, JR.

                 Appeal from the Criminal Court for Monroe County
                        No. 17166 Sandra Donaghy, Judge


                             No. E2018-01356-CCA-R3-CD


The State appeals the Monroe County Criminal Court’s dismissal of the charge of
vehicular assault by intoxication against the defendant, Paul Thomas Welch, Jr. Because
the trial court erred by dismissing the charge, we vacate the trial court’s order, reinstate
the indictment charging the defendant with vehicular assault by intoxication, and remand
the case for further proceedings consistent with our opinion.

    Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Ashley Ervin,
Assistant District Attorney General, for the appellant, State of Tennessee.

Robert L. Jolley, Jr. (at hearing and on appeal), and Emma M. Steel (on appeal),
Knoxville, Tennessee, for appellee, Paul Thomas Welch, Jr.


                                        OPINION

              In June 2017, the Monroe County Grand Jury charged the defendant with
one count each of vehicular assault by intoxication, driving a motor vehicle without a
valid driver’s license, and violating the financial responsibility law. The grand jury
returned a no true bill for four additional charges, including a charge of driving under the
influence (“DUI”).

             Following the return of the indictment, the defendant moved the trial court
to dismiss the charge of vehicular assault on grounds that the grand jury’s refusal to
charge him with DUI precluded an indictment for vehicular assault by intoxication. At
the June 18, 2018 hearing on his motion, the defendant argued that, because DUI is a
lesser-included offense of vehicular assault by intoxication and because the grand jury
had returned a no true bill when presented with a DUI charge, the vehicular assault
charge should be dismissed. The State agreed that DUI is a lesser-included offense of
vehicular assault by intoxication but argued that the grand jury’s returning a no true bill
on the DUI charge did not preclude the State from pursuing the indictment for vehicular
assault. The trial court agreed with the defendant and dismissed the vehicular assault
charge, stating that the dismissal was without prejudice and that the vehicular assault
charge “maybe could be rebrought if it’s still within the statute of limitations.” In its
written order granting the defendant’s motion to dismiss, the trial court reasoned:

              Since the Grand Jury deliberations are all done outside the
              purview of the District Attorney’s Office, the decision to no
              bill the DUI charge and the deliberations involved are
              unknown to this Court. Since a DUI is a lesser-included of
              Vehicular Assault, Count 1 of Vehicular Assault must be
              dismissed.

               In this timely State appeal, the State argues that the trial court erred by
dismissing the vehicular assault charge. The defendant contends that the State has no
right of direct appeal on this matter and that the trial court did not err by dismissing the
charge.

              The State filed a notice of appeal pursuant to Rule 3 of the Tennessee Rules
of Appellate Procedure, which provides a right of appeal to the State when, among other
things, “an order or judgment entered by a trial court” has “the substantive effect of . . .
dismissing an indictment, information, or complaint.” Tenn. R. App. P. 3(c). “When a
statute affords a state or the United States the right to an appeal in a criminal proceeding,
the statute will be strictly construed to apply only to the circumstances defined in the
statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008) (citing Carroll v. United
States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397, 400 (Tenn. 2002)
superseded by statute on other grounds as recognized in State v. Rowland, 520 S.W.3d
542 (Tenn. 2017)).

              As indicated, the defendant asserts that the State has no appeal as of right
flowing from the trial court’s order because the order did not result in the dismissal of the
entire indictment in this case. Contrary to the defendant’s assertion, however, it has
always been the law in this state that “each count” of a multiple-count indictment “is a
separate indictment.” Wiggins v. State, 498 S.W.2d 92 (Tenn. 1973); see also State v.
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Lea, 41 Tenn. 175, 177-78 (1860) (“Each count must be a complete indictment within
itself, charging all the facts and circumstances that make the crime.”). Because, in this
case, the trial court dismissed the indictment charging the defendant with vehicular
assault, the State has a right to appeal that decision via Rule 3.

              We now turn to the question whether the trial court erred by granting the
defendant’s motion to dismiss the vehicular assault charge. The State contends that no
authority supported the trial court’s dismissal of the vehicular assault charge on the
ground that the grand jury declined to indict a lesser-included offense. The defendant
argues that the trial court properly dismissed the vehicular assault charge pursuant to its
general supervisory powers.

               Citing State v. Harris, the defendant urges this court to review the trial
court’s ruling for abuse of discretion. See State v. Harris, 33 S.W.3d 767 (Tenn. 2000).
Although Harris does state that “[t]he decision whether to dismiss an indictment lies
within the discretion of the trial court,” the issue presented in Harris concerned the
dismissal of an indictment under Tennessee Rule of Criminal Procedure 48, which grants
trial courts the discretion to dismiss an indictment sua sponte for unnecessary delay in
prosecution. See Harris, 33 S.W.3d at 769-70 (citing State v. Benn, 713 S.W.2d 308, 311
(Tenn. 1986)); see also Tenn. R. Crim. P. 48(b). Similarly, State v. Benn, which was
cited by the court in Harris, concerns only the dismissal of indictments by the trial court
under the terms of Rule 48. Benn, 713 S.W.2d at 311. Because this case does not
concern dismissal of an indictment via Rule 48, those authorities are inapt.

              Although not cited by the defendant in his motion to dismiss, a trial court’s
pretrial dismissal of an indictment most often occurs under the terms of Tennessee Rule
of Criminal Procedure 12. When assessing the propriety of the dismissal of an
indictment via Rule 12, a reviewing court engages in a two-step process:

              First, we must determine whether the trial court based its
              decision upon findings of law, which would be appropriate, or
              findings of fact that should have been presented to a jury.
              Second, as to questions of law, we review the trial court’s
              holding de novo with no presumption of correctness.

State v. Sherman, 266 S.W.3d 395, 403 (Tenn. 2008) (citations omitted). “Generally
speaking, pre-trial motions to dismiss that are ‘capable of determination’ involve
questions of law, rather than fact.” Id. (citation omitted). Because the issue here,
whether the grand jury’s failure to charge the defendant with DUI operates to bar the
charge of vehicular assault by intoxication, is a question of law, our review is de novo
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with no presumption of correctness afforded to the ruling of the trial court. See id.; see
also State v. Thompson, 197 S.W.3d 685, 690 (Tenn. 2006).

               As indicated, the defendant moved the court to dismiss the vehicular assault
charge given that DUI is a lesser-included offense of vehicular assault and that “the
Grand Jury found no DUI had occurred.”1 Although the trial court, in its order
dismissing the vehicular assault charge, acknowledged that the grand jury’s “decision to
no bill the DUI and all the deliberations involved are unknown to this [c]ourt,” it
nevertheless granted the defendant’s motion finding that, because the grand jury did not
indict on the charge of DUI, the greater charge of vehicular assault “must be dismissed.”

               The grand jury “simply is an investigatory and accusatory body which
determines whether or not there is sufficient evidence to justify bringing an accused to
trial.” State v. Felts, 418 S.W.2d 772, 774 (1967). As the trial court acknowledged, the
grand jury performs its investigatory function and makes the determination whether to
return an indictment in secret. See Tenn. R. Crim. P. 6(h) (providing that 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(k) (providing that, except under circumstances not present in this case, “[e]very
member of the grand jury shall keep secret the proceedings of that body and the
testimony given before it”); see also State v. Penley, 67 S.W.3d 828, 833 (Tenn. Crim.
App. 2001); Tiller v. State, 600 S.W.2d 709, 712 (Tenn. 1980). Because grand jury
deliberations occur in secret, it is not possible to conclude that the grand jury’s failure to
return an indictment for DUI in this case equated to the grand jury’s finding that no DUI
occurred. We simply cannot know why the grand jury declined to indict on the charge of
DUI. As is the case when the petit jury returns inconsistent verdicts, “it is unclear whose
ox has been gored.” United States v. Powell, 469 U.S. 57, 65 (1984). Perhaps the grand
jury thought that the DUI charge was redundant. We just do not know.

              Furthermore, because “the grand jury does not determine the guilt or
innocence of an accused,” see Felts, 418 S.W.2d at 774, the grand jury’s decision to
return a no true bill on the DUI cannot be interpreted as a judgment on the legal
sufficiency of the evidence underlying that, or any other, charge presented. Indeed, the

1
         The effort actually suggests an attempt to obtain a summary judgment based upon the
insufficiency of the evidence, a result that is generally prohibited in criminal law. See, e.g., State v.
Goodman, 90 S.W.3d 557, 561 (Tenn. 2002) (“Where the factual findings necessary to resolve the
[pretrial] motion are intertwined with the general issue, a ruling must be deferred until trial since, in
criminal cases, there simply is no pretrial procedure akin to summary judgment for adjudicating questions
of fact involving the general issue of guilt or innocence.”).

                                                  -4-
courts of this state “follow the ancient rule that the court will not review the judgment of
the grand jury for the purpose of determining whether or not the finding was on sufficient
evidence.” Parton v. State, 455 S.W.2d 645, 648 (Tenn. Crim. App. 1970); see State v.
Gonzales, 638 S.W.2d 841, 845 (Tenn. Crim. App. 1982) (“[I]ndictments are not open to
challenge on the ground that there was inadequate or incompetent evidence before the
grand jury to support it.” (citations omitted)). “An indictment returned by a grand jury, if
valid on its face, is enough to call for trial of the charge on the merits.” Gonzales, 638
S.W.2d at 845 (citing Burton v. State, 377 S.W.2d 900 (Tenn. 1964); State v. Northcutt,
568 S.W.2d 636 (Tenn. Crim. App. 1978); Parton, 455 S.W.2d at 648).

              The defendant argues that the trial court had the power to dismiss the
indictment via its inherent supervisory authority over its proceedings. It is true that “the
courts of this state have the inherent power to supervise and control their own
proceedings,” see State v. Bragan, 920 S.W.2d 227, 239 (Tenn. Crim. App. 1995) (citing
Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991)), and that, for example, “dismissal of an
indictment may be appropriate under a court’s general supervisory authority where
prosecutorial misconduct, while short of constitutional error, has prejudiced a defendant
or affected the charging decision by the grand jury,” see State v. Culbreath, 30 S.W.3d
309, 317 (Tenn. 2000) (citing Bank of Nova Scotia v. United States, 487 U.S. 250
(1988)). In this case, however, there has been no allegation of prosecutorial misconduct
affecting the charging decision to warrant dismissal of the indictment as a function of the
court’s general supervisory authority. Additionally, the defendant has failed to cite any
authority to support his contention that the supervisory authority of trial courts is more
expansive than that of the appellate courts such that it would permit the dismissal of the
indictment under the circumstances presented here.

              Moreover, although the grand jury “operates within the aegis of the circuit
or criminal court,” the “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.” Penley, 67 S.W.3d
828, 831 (Tenn. Crim. App. 2001) (citations omitted). Allowing the trial court to dismiss
an indictment on the basis of speculation into seemingly inconsistent decisions rendered
by the grand jury would improperly encroach upon the independence of that body.

             Accordingly, we vacate the order of the trial court, reinstate the indictment
charging the defendant with vehicular assault by intoxication, and remand for further
proceedings consistent with this opinion.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE


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