                                                                                       08/14/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs July 15, 2020

                 STATE OF TENNESSEE v. ANDY F. NUNEZ

               Appeal from the Criminal Court for Davidson County
                    No. 2016-D-1972 Steve R. Dozier, Judge
                    ___________________________________

                          No. M2019-00473-CCA-R3-CD
                      ___________________________________


Andy F. Nunez, Defendant, and two co-defendants, Joseph Santillan and Daniela Cruz,
were indicted for first degree murder, felony murder, attempted especially aggravated
robbery, attempted aggravated robbery, and reckless endangerment after a Nashville
visitor was shot and killed while walking with his friend in September of 2016. Prior to
trial, the State entered into a use immunity agreement with co-defendant, Ms. Cruz. Her
case was severed from Defendant’s and Mr. Santillan’s case and she ultimately testified
for the State. Prior to trial, counsel for Defendant subpoenaed the ten most recent use
immunity agreements in first degree murder cases where a testifying co-defendant’s
indictment was severed and the case proceeded to final judgment. The State filed a
motion to quash the subpoena. The trial court granted the motion. The case proceeded to
trial. Based partly on co-defendant Cruz’s testimony, Defendant was convicted as
charged. He received an effective sentence of life plus five years. After trial, Ms. Cruz
entered into a plea agreement to a reduced charge. On appeal, Defendant argues that the
trial court abused its discretion by granting the motion to quash the subpoena. After a
review, we determine that the trial court did not abuse its discretion and we affirm the
judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., J., joined. THOMAS T. WOODALL, J., filed a separate opinion concurring
in results only.

Wesley Clark, Nashville, Tennessee, for the appellant, Andy F. Nunez.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley
King, Kate Melby and Chandler Harris, Assistant District Attorneys General, for the
appellee, State of Tennessee.


                                        OPINION

       In October of 2016, the Davidson County Grand Jury indicted Defendant, Mr.
Santillan, and Ms. Cruz for first degree murder, felony murder, attempted especially
aggravated robbery, attempted aggravated robbery, and reckless endangerment for events
that took place in downtown Nashville on September 25, 2016, and resulted in the death
of Theodore Grasset and the attempted robbery of Larry Niehues.

       Prior to trial, the State entered into a use immunity agreement with Ms. Cruz in
exchange for a May 17, 2018 statement. According to the agreement, the District
Attorney agreed not to use the statement against Ms. Cruz in any criminal proceeding
“unless [s]he should testify differently under oath as to any material facts contained in the
statement.” The use immunity agreement was silent as to whether Ms. Cruz would
receive a plea agreement or reduced sentence in exchange for her statement. The case
against Ms. Cruz was severed from Defendant and Mr. Santillan prior to trial. The State
also gave notice that she would be a potential State witness at Defendant’s trial.

       In November of 2018, counsel for Defendant served a subpoena on the State,
seeking the ten most recent use immunity agreements, negotiated plea agreements,
judgments, and “any other documents in the possession of the [State] which reflect any
case dispositions or agreements made by the [State]” “looking back from October 17,
2018,” where the person was:

              a. A Co-[d]efendant in a criminal indictment for First Degree
              Murder, and
                   i. Whose indictment was severed from their co-defendant(s),
                   and
                   ii. Who testified in the trial or trials of that person’s co-
                   defendant(s); and
                   iii. Whose indictment(s) above described have Judgments
                   (alternatively described as “final orders” within the meaning
                   of the Tennessee Rules of Appellate Procedure) entered as on
                   October 17, 2018.

       In response to the subpoena, the State filed a motion to quash the subpoena,
arguing that it was unreasonable, oppressive, and did not seek material evidence. At the
hearing, counsel for Defendant argued that the State had a “routine practice” of “making
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deals” in exchange for testimony on “a wink and a nod.” Counsel for the Defendant
argued that the documents obtained from the subpoena would show a pattern of leniency
by the State with regard to eventual disposition of cases in which a defendant signed a
use immunity agreement. In turn, counsel for Defendant would be able to establish bias
on the part of Ms. Cruz and prove that her testimony was somehow unreliable because
she was going to receive a lesser sentence or conviction based on her testimony.

        At the conclusion of the hearing, the trial court granted the motion to quash the
subpoena. The trial court was “not convinced [that] the request [wa]s even relevant, but
if relevant under 401, it would have very minimal probative value and certainly . . . the
probative value is not going to substantially outweigh the confusion of the issues,
misleading the jury, undue delay, making this trial into a trial of every other use
immunity agreement.” Additionally, the trial court determined that this was not the “type
of 406 habit evidence that’s routine and so automatic that . . . it’s the same in every
situation.” The trial court noted that counsel for Defendant would be permitted to “grill,
cross-examine” Ms. Cruz at trial about what she “expect[ed] to get from her testimony”
at trial and that “would be ample information for the jury about her bias and what she
hopes to obtain without introducing the requested information under the subpoena.”
Lastly, the trial court commented that counsel for Defendant could probably get the
information sought by the subpoena from the clerk or the jury coordinator.

        At trial, Ms. Cruz provided a detailed account of the events leading up to Mr.
Grasset’s death. The State put forth proof that Ms. Cruz and Defendant were dating and
living together in September of 2016. Ms. Cruz and Defendant had known each other for
a few months at the time. On the day of the incident, Ms. Cruz, Defendant, Mr. Santillan,
Sami Krasniqi, and Michelle Rogers1 were all at an apartment in Antioch. Ms. Cruz had
known Mr. Krasniqi since she was fourteen years old and had known Ms. Rogers for a
few months. Mr. Krasniqi proposed that the group burglarize the home of one of his
relatives to steal the contents of a safe.

       At the time, Mr. Santillan drove a grey Chevrolet Impala. The Impala was
equipped with a distinctive blue light near the license plate. Mr. Santillan and Mr.
Krasniqi tried to remove the blue light from the license plate area prior to the planned
burglary. They were unsuccessful. The group left the apartment, travelling in the Impala
and another car toward the address of the proposed burglary. Once they arrived, Mr.
Krasniqi tried to get Defendant, Mr. Santillan, and Ms. Cruz to enter the house. They
declined. The group split up with Ms. Cruz, Mr. Santillan, Ms. Rogers, and Defendant
leaving in the Impala. They stopped at several different locations before finally driving
toward downtown Nashville.

      1
          Ms. Rogers died prior to trial.
                                            -3-
       Ms. Cruz was driving when they arrived downtown, and Defendant was seated in
the passenger seat. Ms. Rogers was in the back seat behind Ms. Cruz; Mr. Santillan was
in the back seat behind Defendant. Defendant told Ms. Cruz to drive down Broadway.
Ms. Cruz made a wrong turn. Defendant was angry with Ms. Cruz, corrected her, and
told her where to drive. Ms. Cruz drove to Fourth Avenue South near the Country Music
Hall of Fame. Defendant instructed her to stop the car on the street near Mr. Grasset and
Mr. Niehues, who were walking on the sidewalk.

       Defendant and Mr. Santillan got out of the car. Defendant was wearing some type
of face covering. He yelled at Mr. Grasset and Mr. Niehues to stop walking. Instead of
complying with Defendant’s demand, the men ran. Mr. Grasset ran back toward
Broadway, and Mr. Niehues ran into an alley. Defendant shot Mr. Grasset as he ran
away. Mr. Grasset fell to the ground and was able to get back up and run a short distance
before collapsing. Defendant and Mr. Santillan returned to the Impala. Defendant got in
the back seat and Mr. Santillan got in the front seat. Ms. Cruz drove the car out of town,
heading south on I-65. When they arrived at the trailer where Defendant and Ms. Cruz
were living, Mr. Santillan and Ms. Rogers left in the Impala.

        Surveillance cameras at a loading dock near the scene captured the shooting. The
video footage showed the Impala with the distinctive blue light. The Impala stopped and
two men exited the vehicle. One of the men wore a mask and the other man wore a white
baseball cap with a black bill. Police initially released limited images from the
surveillance cameras; they specifically refrained from releasing images of the blue light
at the license plate of the vehicle.

       On October 1, Ms. Cruz and Defendant left Nashville for North Carolina. Police
were able to identify Mr. Santillan as the owner of the vehicle in early October and by
mid-October, located the vehicle. The blue light, front and rear bumpers, and spoiler had
been removed. Police also executed a search warrant at Mr. Santillan’s home, where they
found a white hat with a black bill consistent with the hat worn by one of the men in the
surveillance video. Police recovered Mr. Santillan’s cell phone from his employer. The
cell phone had been placed in a toilet tank at a construction site in Franklin.

       By mid-October, police had identified Ms. Rogers and Ms. Cruz as suspects.
Police interviewed Ms. Cruz’s mother, Mary Cruz. Mrs. Cruz told police that she was
able to identify Defendant from the surveillance video because she bought the pants he
was wearing. She also recognized his gait. She identified Defendant as her daughter’s
boyfriend. Mrs. Cruz called her daughter. Ms. Cruz promised her mother that she would
return to Nashville to assist with the investigation. Instead, Ms. Cruz bought bus tickets

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to Brownsville, Texas for herself and Defendant under different names. Ms. Cruz and
Defendant were eventually arrested in late October in Raleigh, North Carolina.

       During her initial interview with police, Ms. Cruz was not forthcoming.
Eventually, she gave police an account of the events that took place on the night of the
shooting, including pieces of information about the incident that the police had not yet
released to the public. Police analyzed Ms. Cruz’s cell phone. Forensic analysis of
location data from her cell phone was consistent with her account of the events.

       During her testimony at trial, Ms. Cruz was questioned about her use immunity
agreement. She stated that she had not been promised anything for her testimony but
acknowledged that she hoped to get a reduced charge and lesser sentence. On cross-
examination, Ms. Cruz denied that her lawyer told her testifying would be a good way to
get a favorable resolution to her case. Ms. Cruz claimed that she also testified to get
closure for the events that took place.

       At the conclusion of the proof, Defendant was found guilty as charged in the
indictment on all counts. The trial court merged the conviction for felony murder with
the conviction for first degree murder. After a sentencing hearing, Defendant was
sentenced to an effective sentence of life plus five years. Defendant filed a motion for
new trial in which he challenged the trial court’s grant of the motion to quash the
subpoena. The trial court denied the motion for new trial. This appeal followed.

                                         Analysis

       On appeal, Defendant argues that the trial court abused its discretion in quashing
the subpoena, and effectively violated Defendant’s rights under the Confrontation Clause.
The State disagrees, arguing that subpoenas are governed not by the Confrontation
Clause, but by the compulsory process clause. Moreover, the State argues, the trial court
properly quashed the subpoena.

      Under both our state and federal constitutions, a defendant has the right to
compulsory process for obtaining witnesses in their favor. See U.S. Const. amend VI;
Tenn. Const. art. I, § 9; T.C.A. § 4-17-105. The United States Supreme Court discussed
the implications of this right as follows:

      The right to offer the testimony of witnesses, and to compel their
      attendance, if necessary, is in plain terms the right to present a defense, the
      right to present the defendant’s version of the facts as well as the
      prosecution’s to the jury so it may decide where the truth lies. Just as an
      accused has the right to confront the prosecution’s witnesses for the
                                           -5-
      purpose of challenging their testimony, he has the right to present his own
      witnesses to establish a defense. This right is a fundamental element of due
      process of law.

Washington v. Texas, 388 U.S. 14, 19 (1976). “Although an accused in a criminal trial
has a constitutional right to the compulsory attendance of witnesses under the Sixth
Amendment of the United States Constitution, and Article I, Section 9, of the
Constitution of Tennessee, the right to compulsory process is not unlimited.” State v.
Smith, 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982). The court continued:

      “A court is not required to issue compulsory process for anyone whom
      accused may designate as a witness; the constitutional right to compulsory
      process requires such process for, and only for, competent, material, and
      resident witnesses whose expected testimony will be admissible. Within
      these limitations[,] accused may obtain the attendance of any witnesses he
      cares to use.”

Id. (quoting Bacon v. State, 385 S.W.2d 107, 109 (1964)).

        The subpoena in this case was issued pursuant to Rule 17 of the Tennessee Rules
of Criminal Procedure, which rule provides that “[a] subpoena may order a person to
produce the books, papers, documents, or other objects the subpoena designates” either
“in court before trial or before they are to be offered in evidence.” Tenn. R. Crim. P.
17(d)(1). “On motion made promptly and in any event by the time specified in the
subpoena for compliance therewith, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive.” Tenn. R. Crim. P. 17(d)(2). “The
rule . . . is the unlimited right of subpoena[,] limited only by authority to quash upon a
showing (by the objector) that the witness has no information material to the issues or
that the evidence sought is equally immaterial.” State v. Womack, 591 S .W.2d 437, 445
(Tenn. Ct. App. 1979). On appeal, we review a trial court’s ruling on a motion to quash a
subpoena with an abuse of discretion standard. State v. Mangrum, 403 S.W.3d 152, 166
(Tenn. 2013) (citing State v. Hester, 324 S.W.3d 1, 53 (Tenn. 2010)). A trial court can
abuse its discretion by applying an incorrect legal standard, reaching an illogical or
unreasonable decision, or basing its decision on a clearly erroneous assessment of the
evidence. Id.

        As explained above, Defendant in this case sought the ten most recent use
immunity agreements, negotiated plea agreements, judgments, and “any other documents
in the possession of the [State] which reflect any case dispositions or agreements made by
the [State]” since October 17, 2018, where the person was:

                                          -6-
              a. A Co-[d]efendant in a criminal indictment for First Degree
              Murder, and
                   i. Whose indictment was severed from their co-defendant(s),
                   and
                   ii. Who testified in the trial or trials of that person’s co-
                   defendant(s); and
                   iii. Whose indictment(s) above described have Judgments
                   (alternatively described as “final orders” within the meaning
                   of the Tennessee Rules of Appellate Procedure) entered as on
                   October 17, 2018.

(emphasis in original). Defendant sought this information to “demonstrate a pattern or
practice of the Davidson County District Attorney’s Office whereby the DA severs one of
the co-defendants in a homicide indictment, presents the witness for testimony, and only
after the trial is complete, ‘solidifies’ a plea deal which results in a significantly reduced
charge to the testifying, severed co-defendant.” Defendant argues on appeal that the trial
court improperly quashed the subpoena in part because the State’s pattern of favorable
treatment could have indicated bias on behalf of Ms. Cruz that Defendant could have
exposed at trial.

        At the conclusion of the hearing on the motion to quash, the trial court determined
that the information sought by the subpoena was probably not even relevant to
Defendant’s case and/or Ms. Cruz’s bias but, even if relevant, would have “minimal”
probative value that did not “outweigh the confusion of the issues, misleading the jury,
undue delay, making this trial into a trial of every other use immunity agreement.” The
trial court noted counsel for Defendant would be given the opportunity to “grill, cross-
examine” Ms. Cruz about what she “expects to get from her testimony” at trial and that
the jury would be able to use that information to determine whether the witness was
biased in favor of the State. Moreover, the trial court determined that allowing Defendant
to introduce information about ten other cases would essentially result in mini-trials of
the underlying facts of each of those cases. Lastly, the trial court commented that
counsel for Defendant could probably get the information sought by the subpoena from
the clerk or the jury coordinator. At trial, counsel for Defendant asked Ms. Cruz what
she “expect[ed] . . . to get for her testimony.” Ms. Cruz initially stated that she hoped to
get some consideration from the State in exchange for her testimony but later claimed
that she spoke to the State “for closure.” When questioned by counsel for the State, Ms.
Cruz acknowledged that her desire for favorable treatment from the State was “one of the
reasons, but . . . not the main reason” she testified at trial. Ms. Cruz admitted that she did
not have any formal agreement with the State. After Defendant’s trial, Ms. Cruz pled
guilty to facilitation of second degree murder. For her guilty plea, she received a
sentence of fifteen years as a Range I, standard offender.
                                            -7-
       Defendant argues on appeal that his right to confront the witness was limited in
violation of the Sixth Amendment. We acknowledge that a defendant has the right to
examine witnesses to impeach their credibility or to establish that the witnesses are
biased, including the right to examine a witness regarding any promises of leniency,
promises to help the witness, or any other favorable treatment offered to the witness. See
State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994); see also State v. Spurlock, 874 S.W.2d
602, 617 (Tenn. Crim. App. 1993). As Defendant notes, an undue restriction of this right
may violate a defendant’s right to confrontation under the Sixth Amendment of the
United States Constitution and Article I, Section 9, of the Tennessee Constitution. See
Smith, 893 S.W.2d at 924; see also State v. Black, 815 S.W.2d 166, 177 (Tenn. 1991).
Here, the record establishes that Defendant was able to question and alert the jury as to
Ms. Cruz’s motivation for testifying. Ms. Cruz was asked why she was testifying for the
State and whether she received the promise of leniency in exchange for her testimony.
Defendant was not prohibited or limited in his questioning.

       Defendant also argues that the trial court applied the improper standard, quashing
the subpoena “without regard to whether the compliance would be unreasonable or
oppressive, as required by the rule.” We disagree. The trial court quashed the subpoena
because the information sought was irrelevant and, even if relevant, minimally probative
to establish bias. See Womack, 591 S.W.2d at 445 (noting that information sought by
subpoena must be material to the issues or evidence sought); State v. Tony Click, No.
162, 1991 WL 188882, at *2 (Tenn. Crim. App. Sept. 26, 1991) (“Where there is no
record showing that testimony would have been helpful to [a defendant], there is no
abuse of discretion in denying a motion to subpoena defense witnesses.”). In our view,
the trial court used the proper standard. Moreover, the trial court did not abuse its
discretion in quashing the subpoena. Defendant is not entitled to relief on this issue.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                            ____________________________________
                                            TIMOTHY L. EASTER, JUDGE




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