           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                     Assigned on Briefs at May 21, 2014

               STATE OF TENNESSEE v. VANESSA COLEMAN

                   Appeal from the Criminal Court for Knox County
                     No. 86216D     Jon Kerry Blackwood, Judge




                No. E2013-01208-CCA-R3-CD - Filed December 9, 2014


D. K ELLY T HOMAS, J R., J., concurring.

        I write separately because I feel it is necessary to adequately address the federal grand
jury issue as presented by the Defendant in her appellate brief. The majority notes that the
Defendant moved to dismiss the presentment under Rule 6(j)(6) of the Tennessee Rules of
Criminal Procedure, arguing that her subpoena to testify before the federal grand jury barred
her state court prosecution. I do not disagree that Rule 6(j)(6) “applies only to proceedings
in state grand juries within the State of Tennessee.” However, the Defendant’s argument
both in her interlocutory appeal, and as presented in this direct appeal, is that the federal
authorities were acting as agents of the Knox County District Attorney General’s office.
Specifically, she notes that the charges against her arose from a joint investigation between
State and federal authorities. She continues, by virtue of this joint investigation, the federal
authorities were acting as agents of the Knox County District Attorney General when they
subpoenaed her to testify before the federal grand jury regarding her knowledge and
participation in the crimes against the victims, thereby, triggering the immunity protection
afforded by Rule 6(j)(6). In my opinion, to ignore the agency issue, ignores the issue
presented by the Defendant.

      The Defendant argues that the advisory commission comments to the rule support her
argument. The following comment is included therein:

       This rule grants immunity only to those witnesses compelled to testify by the
       district attorney general, or the district attorney general’s assistant or agent, by
       virtue of subpoena or order of the judge.

Tenn. R. Crim. P. 6, Advisory Comm’n Cmts. (emphasis added). She also cites to State v.
McCollum, (Tenn. 1995), wherein our supreme court held that there was no distinction
between witnesses testifying under subpoena requested by the grand jury foreperson or those
testifying by virtue of subpoena requested by district attorney general. 904 S.W.2d 114, 117
(Tenn. 1995). The McCollum court explicitly rejected the notion that Rule 6 grants
immunity only to the witness who appears pursuant to a subpoena requested by the district
attorney general, finding such an interpretation to be “illogical, restrictive, and violative of
the very essence of the rule.” Id. The court continued, “Were we to apply [the immunity
protection of Rule 6] only when the witness was subpoenaed at the request of the district
attorney general, . . . immunity could easily be subverted by ensuring that the official request
for a subpoena came from a source other than the district attorney general[,]” providing “a
mechanism for evading the requirements of fair play and due process.” Id.

       However, under the facts of this case, the Defendant was not compelled to testify
before the federal grand jury. The Defendant never invoked her Fifth Amendment privilege
against self-incrimination before testifying for the federal grand jury. Although not cited by
the Defendant, the advisory commission comments also state that the immunity protection
of Rule 6 is “triggered by the refusal of a witness to testify before the grand jury.” See Tenn.
R. Crim. P. 6(j)(5) & (6). Such a refusal was not made, and the Defendant was not
compelled to testify. Therefore, in my opinion, it is unnecessary to decide whether a federal
authority, conducting a joint investigation with a county’s district attorney general, could be
declared an agent of that district attorney general office’s, as such is not dispositive of the
case. I agree with the majority that the Defendant is not entitled to relief on this issue.




                                                   D. KELLY THOMAS, JR., JUDGE
