State v. Cleveland

presumption In rebut of vin- prosecutor’s decision order to demonstrates If, dictiveness, prosecution legitimate. proof, must demon- hearing was after (1) charge presump- strate that increase determines overcome, may justified objective in cir- change tion has seek some been penalty case. evidence death this cumstances or the state charging legitimately

which influenced the (2) the new information ANDERSON, C.J., concurs. have been reasonably could not discovered BIRCH, JJ., separately REID and concur prosecution its at the time the exercised opinion. bring original charge. discretion to HOLDER, J., participating. Id. I am authorized to state that Justice Justice, REID, concurring. joins Concurring Opinion. BIRCH

I to remand the concur case instructions; however, to the court with impose precise

I would more standard presumption

determining of vindictive- has

ness been overcome. majority the presumption states that “may clear

of vindictiveness be overcome convincing which evidence demonstrates prosecutor’s decision was motivated Tennessee, Appellant, STATE of further, by legitimate purpose,” and “the proffer specific, legitimate, explanations for its conduct on-the-record dispel CLEVELAND, III, vindictive appearance which Johnny Lee a/k/a Majority p. opinion, Appellee. ness.” 547. Conse Fuguan, Ismil Akem quently, proof presented the State Tennessee, Supreme Court of opposed spe legitimate, must show at Knoxville. cious, purpose punishment for the increased dispel opposed appearance, which -will 29, Dec. This stan reality, of vindictiveness. proof not be met with which

dard would prosecutor acted in

showed

good faith. It is the “fear vindictiveness” may chill a defendant’s exercise

which collaterally attack the first 21, Perry, Blackledge v. 417 U.S.

conviction. 2102,

26-28, 2098, 40 L.Ed.2d 628 94 S.Ct.

(1974). Bower, in In Re 38 Cal.3d As stated 1269, Cal.Rptr. P.2d

(1985), is not on presumption based “[t]he

subjective of mind of the individual state imply or she does not that he

prosecutor and

individually improper motive.” harbors an view, high standard cannot be my of facts information

met with evidence prose- reasonably available to

which was original charge made.

cutor when the rule, adopted by the Califor- apply

would in Re Bower: Supreme Court

nia Walkup, Reporter, Knox General &

John General, Moore, Darían E. Solicitor Michael General, Taylor, Attorney Nash- B. Assistant Cox, Attorney ville, H. District Gen- William (at Trial), Bright, District H.C. Assistant eral (at Ttial), Attorney Chattanooga, for General Appellant. Defender, Garth, District Public

Ardena J. Miller, Assistant District Donna Robinson Defender, Chattanooga, Appellee. Public BACKGROUND OPINION Cleveland, Johnny age ANDERSON, Chief Justice. victim, age and the female lived presented primary issue in this neighborhood acquainted. same were conviction day they and the One met on street rape juror during is whether the absence of a agreed to she victim show Cleveland where harm- was they apart- the lived. After entered victim’s prejudicial less whether it or was victim, ment, the Cleveland attacked threw required the and new trial. floor, forcibly her her to the removed secondary A issue is the trial court whether threatened to kill the vic- clothes. Cleveland jury aggra- should have instructed the that fork, large struggle during tim with but the vated is a included offense of trigger able to an alarm. When she was attempted aggravated rape. heard the responding maintenance workers trial, day of beginning At the the second of out, cry they entered and the victim escorted replaced missing juror judge with apartment. naked Cleveland out juror. missing juror an alternate When the events, the foregoing a result of the As appeared during closing argument, on one of at- defendant was indicted count replaced removed the alternate “unlawfully, aggravated rape for tempted juror. original missing him No with the forcibly coercively attempting] engage Thereafter, objection jury, made. as was victim], penetration [the with while sexual constituted, guilty then defendant found the weapon ... with a or an article used armed attempted aggravated rape. of in a manner to lead the victim fashioned first on The absent issue was raised a weapon.” it to be believe appeal, of after which the Court Criminal trial, prosecution presented all its At juror’s Appeals that the absence was found At proof day the first of trial and rested. on not error error and harmless trial, beginning day of the second analysis. that trial The court also found jurors missing, trial court was jury that court should have instructed rest- picked The defense then an alternate.1 aggravated of- assault was a lesser included evidence, any and the presenting ed without rape. attempted As a aggravated fense of argu- prosecution began closing initial its result, Appeals re- the Court Criminal missing juror The entered the court- ment. case for versed and remanded the a new during argument. room The appealed. trial. The State prosecutor exchange between the occurred record rele After a review of the judge: trial and the authorities, we conclude that the vant Honor, I need to Bright: Your do Mr. argument a fun closing was over? start the structure damental defect Yeah, you really guess need I The Court: 6 the Ten mechanism under present. he is now start over since Constitution, prejudicial to and was nessee agree judicial process.. therefore what, Bright: you I’ll let tell Mr. Appeals with the Court about tell him it. other available, harmless error Okay. The Court: required. We also con that a new trial finished, closing arguments were was When the Court of Criminal clude that replaced trial court finding the trial court should incorrect in juror. objection made to No aggravat that the offense have instructed The trial procedure by the defendant. included offense of assault was a lesser ed attempted jury instructed the on rape. Accordingly, we court then attempted aggravated in- he rape, had been Appeals’ judg aggravated for which affirm the Court dicted, offenses— and on a number of other ment modified. sequestered. was not 1.e., battery, attempt- at the same time. rape, the same sexual submitted (Tenn. battery, battery, aggravated ed sexual sexual State, 1991); Tenn. Willard v. as- battery, and sexual (1989). instruct, requested, sault—but did assault was offense jury in argument Closing assists attempted aggra- lesser included offense of determining purpose of the facts. The sum rape. vated found defendant “to assist the is to each side mation allow guilty evaluating, applying analyzing, hearing at the on The defendant contended it “includes counsel’s evidence” and new the motion for his as to the conclusion state contention granting requested for not evi draw from the should instruction, did but not raise absent Garza, F.2d 608 United States v. dence.” issue. The trial court overruled the motion. (5th Cir.1979); 29.1; see Tenn.R.Crim.P. 659 however, Trialbook, Appeals, The Sonsteng Haydock, and also a summarizing conviction and remanded for (purposes § reversed the include factual 3.02 trial, finding juror evidence, theories, new that the absence of a significance of reasonable subjected theories). inferences, not be to legal error could have and Courts analysis. The also harmless error is a valu recognized that in- found that the trial court should have the privilege to the State and able afforded jury aggra- structed the that the offense of and latitude to have afforded wide defense jury. vated was a included offense their arguing cases counsel (Tenn. 797, aggravated rape. Bigbee, 809 v. 885 S.W.2d State 1994). granted application per- for We the State’s impor- mission to these to review two jurors may jury impaneled, Once a is

tant issues.2 prior to discharged from further service only by the trial court found deliberations ABSENT JUROR disqualified perform to then- to be “unable or discharging The in first trial court’s action 24(e); see Tenn. Tenn.R.Crim.P. duties.” juror original replacing absent and him (1994). Although § 22-2-312 Code juror, reversing with an alternate and then juror to discharge to a select an original juror appeared, fol- course when juror to is left the discretion of recognized procedural lowed no course Millbrooks, judge, 819 trial v. S.W.2d original juror missing part resulted in the 441, (Tenn.Crim.App.1991), there is no 445 agrees of the trial. The is this otherwise, procedure, statutory recognized preju- but contends is harmless because no juror, selecting an alter discharging to dice the defendant has been shown. nate, reinstating the dis and then order to whether the error is sub- determine has missed who ject analysis, re- we first trial, case. Accord as occurred jury. scope right by to view judge’s action error. ingly, the by jury primary question is right to trial a funda we answer I, to harmless preserved by 6 of the error right mental article whether Bobo, analysis. In State v. we said that “special error the Tennessee Constitution has replacing error member criminal matters.” Ricketts the trial court’s resonance in (Tenn.1996). Carter, jury It an alternate after 424 of the 918 S.W.2d deliberating in begun had violation right to have a unanimous includes the 24(e), Shelton, past “reache[d] Tenn.R.Crim.P. verdict. State (Tenn.1993). our statutory procedural framework of right It includes the also justice system by encroache[d] criminal every fact tried and determined guarantees upon certain basic constitutional and to have all issues of twelve application per- ad- raised the State’s Although the has briefed several issues defendant issues, appeal. limited to the two mission our review is ditional I, pres- § of in a must be under article our We each of twelve Constitution.” compared right every proceedings a violation of the to a trial stage ent for right to a violation of to counsel or “preserve right inviolate” the constitutional is, right impartial judge, that to an Instead, jury trial. the dissent’s view to a the trial mecha- “defect[ ] structure of merely presence endorses the fundamen- prejudices judicial process. nism” which harmless principled tal error without error held, therefore, such an error We practical remedy. or a analysis” harmless and re- “deifies] quires “automatic reversal.” Id. at 357-58. conclude that the error We that, argues implicated unlike

The State case fundamental error here occurred before the deliber- by jury under 6 of the Tennessee ated, who did not and constituted a defect Constitution trial, object at failed mechanism that defies harmless error prejudice actual show because Moreover, analysis. error is one that not only heard all of evidence and missed rights affects substantial ac closing argument.3 con- portion of The State but also cused results tends this case is controlled State v. Onidas, judicial process as State v. a whole. Chestnut, (Tenn.Crim.App. 643 S.W.2d 343 (Tenn.1982); also see Tenn. 1982), Ap- which Court of Criminal 52(b). 36(b); R.App.P. Tenn.R.Crim.P. peals held that there no indication that was agree of therefore with the Court prejudiced the defendant had been when a judge’s Appeals’ conclusion that the trial ac testi- sleeping missed five minutes of the tion was error which violated defen mony. by right dant’s constitutional to fundamentally was, therefore, In the our view error so that we do prejudices the only remedy a new analysis. The trial. question the the error was reach whether prej- harmless and whether there was actual LESSER OFFENSES By discharging and then rein-

udice. first juror, stating judge included instruct the a The trial refused to pro- portion aggravated who missed a of the lesser member that assault was a included by ceedings. attempted The to trial a aggravated The offense invio- “preserved members twelve must be concluded that right, urges late.” 814 S.W.2d at 357. to and the defendant us therefore, requires every effort be question, that agree. order to answer we jury’s of the integrity to maintain made and case to must examine statutes law judge example, For deliberations. deciding test for appropriate determine in easily prevented could necessarily included whether offense is waiting for to show the absent ease in another. discharging up the absent or with an proceeding alternate. standards, satisfy To constitutional provide presentment must or an indictment dissent, Drowota, while acknowl- Justice adequate charged, an notice offense error, contends edging presence entry proper judgment, for basis the defen- error was harmless because protection against jeopardy. double suitable juror’s to show from dant failed (Tenn. Byrd, 820 S.W.2d prose- short 1991). result, legal As a a defendant cannot closing argument. Requiring such a cution’s which is not ly convicted an offense however, to an all showing, amount but would which is not a charged the indictment or to meet in burden a defendant impossible in the indictment. lesser offense embraced require speculation sheer as most cases (Tenn. 305, 310 Moreover, Trusty, absence. the effect 1996). point misses fundamental the dissent argument. minutes of missed indicate twenty Both 3. parties through §§ -522. 39-13-501 legislature “in cases Ann. Our has said that Code crime, Moreover, charged any felony where prosecution of criminal offense, (2) here, Ann. Tenn.Code is an inchoate grades or or classes of two more (1990), indictment,” while may be included in the 39-12-101 offenses e.g., completion. See duty “charge is an offense carried has the as- Trusty, (aggravated S.W.2d at 312 all of the law of each offense included attempted first- indictment, grade of any request a lesser without on the sault not murder). part degree defendant to do so.” Tenn.Code (1990). duty, §Ann. 40-18-110 This there lesser aggravated assault Whether fore, types offenses extends two lesser offense included may be included in an indictment: complex question. The indict- rape is a more offense, “grade lesser or class” of with “unlawful- ment the defendant Trusty, “lesser included” offense. en- ly, forcibly, coercively attempt[ing] at victim], penetration [the gage sexual weapon or an was] armed with [he while “grade A or class” of offense is in a to lead used or fashioned manner legislature established and is deter weapon.” victim to believe to be by looking simply mined at the offenses set rape there- offense of See, statutory chapter part. in a forth 1) required elements: fore - e.g., through §§ 39-13-101 Tenn.Code state, culpable mental acted with a defendant (1991) (“assaultive offenses”). In con 2) i.e., recklessly; intentionally, knowingly, or trast, an offense is “lesser included” anoth engaged in conduct constituí-' the defendant “only greater er if the elements of the of step ing a substantial toward commission fense, as those elements are set forth crime, i.e., attempted forcibly coer- indictment, congruent include but are not 3) penetration; and cively engage in sexual with, Trusty, all the elements of the lesser.” any weapon or article the defendant used (quoting 919 S.W.2d at 310-311 Howard v. used or fashioned a manner lead State, (Tenn.1979)); see weapon. it See victim to believe to be also Tenn.R.Crim.P. 31. (culpable § 39-11-301 men- Tenn.Code Ann. Accordingly, the in (at- state); § Tenn.Code Ann. 39-12-101 tal jury on grades struct the all or classes lesser (ag- § tempt); Ann. 39-13-502 Tenn.Code all if offenses and lesser included offenses rape). gravated support will evidence a conviction for the assault, hand, Aggravated on the other preserve offenses. instructions defen an requires proof of assault combined right to fair and dant’s reasonable notice bodily injury either serious or use charges all and allow consider Thus, requires deadly weapon. determining appro relevant offenses in 1) a de- of elements: combinations priate Finally, for offense conviction. “allow who, knowingly, acting intentionally, fendant ing of consideration of lesser included bodily recklessly, injury to another or causes grades of lesser fenses the offenses deadly weapon or causes and either uses classes, supports guilt if the evidence on 2) who, bodily injury; a defendant serious offenses, evenly' more balances those acting intentionally knowingly, or causes an- rights prosecution of the defense reasonably bodily in- imminent other to fear justice.” Trusty, serves interests deadly weapon or jury and either uses a at 311. 3) bodily injury; or a defen- causes serious intentionally knowingly, Here, who, acting or aggravated is not dant that a attempted aggravat physical contact with another grade or class of causes extremely regard person as legislature aggra reasonable would ed has included provocative, uses a or and either among the “assaultive offenses” offensive vated assault inju- bodily deadly weapon serious §§ or causes Ann. 39-13-101 set forth Tenn.Code - 39-13-101(a) §§ -107, rape Ann. ry. Tenn.Code through aggravated while 102(a)(1). in Tenn. among “sexual offenses” listed analysis

A close of these elements CONCLUSION aggravated reveals that assault is not a less determined that the absence of a We have er included offense of for a violates the rape, as in the indictment. Each by jury pro- fundamental aggravated form of assault contains at least 6 of vided the Tennessee Con- necessarily one element that is not included stitution and is a defect the structure of rape, in the offense of prejudices the trial mechanism which and, therefore, charged in the indictment process. an error is not Such bodily injury, in this case: reasonable fear of requires auto- bodily injury, physical imminent or contact a matic reversal and a new trial. We also extremely person regard reasonable would err in determined that the trial court did not provocative. offensive or See Tenn.Code failing to instruct the on the offense of 39-13-101(a)(l)-(3). Although we aggravated affirm the assault. We therefore recognize any all of these elements judgment of the Court Criminal may accompany and often do as modified. The costs of are satisfy aggravated rape, that does not of Tennessee. taxed test for a lesser included offense under the Trusty/Howard analysis. REID, HOLDER, JJ., BIRCH and concur. argument,

The defendant’s as well as the analysis, Appeals’ empha- DROWOTA, J., separate dissents with presented in sizes that the evidence this case dissent. support a the State was sufficient to aggravated assault.4 do conviction DROWOTA,Justice, concurring and disagree; the evidence was suffi- dissenting. support separate count in the cient assault had the indictment majority’s fully concur prosecutor pursue charge. chosen to such refusing that the trial court did not err sufficiency weight Yet the of the evidence aggra- instruct the on the elements of determining is not the test for one offense vated assault since it is neither a lesser necessarily offense. included another attempt- offense of grade nor lesser included Instead, right preserve to a defendant’s to However, aggravated rape. I dissent ed receive fair and reasonable notice ju- majority’s from the conclusion prosecution’s charges, and also to ensure the during portion of the State’s ror’s absence right charges it to seek on the offenses initial was a fundamental appropriate, placed the focus must be deems I, Article defect in the trial mechanism under on the elements of each offense and the § is 6 of Tennessee Constitution which Howard, allegations in the indictment. 578 subject not a harmless error at S.W.2d judicial process. prejudicial to the which was follow, I am of the For the reasons that therefore, conclude, analysis applies opinion that error harmless grade is not a lesser or a lesser assault judi- nor the and that neither the offense of included by error in prejudiced cial were properly refused to rape. The trial court this case. instruct on the offense.5 batteiy, battery, attempted upon sexual the cases relied al sexual 4. We also observe that support his claim were all the defendant in battery grades of offenses of are lesser or classes See, Reed, e.g., prior Trusty. State v. decided attempted aggravated rape. Tenn.Code (Tenn.Crim.App.1984). 190 689 S.W.2d § the same reasons 39-13-501 to -522. For hereinabove, is neither a lesser described remaining that of the offenses

5. We observe grade included offense. of offense or a lesser court, rape, aggra- charged by trial battery, sexu- vated sexual

555 regular when a rule of automatic reversal OF HARMLESS APPLICABILITY alternate after de- replaced ERROR ANALYSIS is with an begun.1 liberations recognized procedure Since there is no discharging replacing juror, selecting conclusion, majority’s Contrary to the alternate, reinstating and then clearly not control the outcome Bobo does juror, discharged con- or absent State Here, and rein this case. substitution that the trial court was cedes action be before deliberations statement occurred However, argues that the error. the State regular was absent gan. The upon v. Relying error was harmless. State closing initial during of the State’s Bobo, (Tenn.1991), major- 814 S.W.2d 353 any por not miss did statement. ity implicates holds that the error the funda- right to a proof. The defendant’s tion of the I, right by jury mental trial under Article by jury not in this case. trial violated § 6 of the Constitution and Tennessee consti- by Every was tried and determined fact the structure the trial tutes defect time, at the same same twelve not mechanism which is to harmless closing Although ar verdict was unanimous. analysis. disagree. error privilege for both the gument is a valuable Article 6 of the Tennessee Constitu that, defense, just privi it is State and provides right tion State, 353, 357 lege. Cone v. Cf. inviolate, preserved must be which means (defense (Tenn.Crim.App.1987) counsel right preserved must be existed Closing argu closing argument). waived adoption at at common law the time of right to part of the constitutional ment not Bobo, the constitution. 814 S.W.2d at 356. Moreover, by jury. statements a trial by jury Encompassed right within the closing are not evi argument counsel (1) every principles: are the Woods, 211 v. dence. State S.W.2d ju be tried determined twelve Indeed, jurors (Tenn.Crim.App.1990). (2) rors; all issues of fact must be submitted routinely are instructed that state (3) time; to the same at the same are and should ments of counsel not evidence Id; verdict must be unanimous. supported by proof. disregarded State, see also Willard v. 174 Tenn. (3rd ed.1992). T.P.I.-Crim. 1.07 Shelton, (1939); S.W.2d jurors in this case so instructed. were (Tenn.1993). 184, 137 view, my in this Accordingly, error principles two these were com- implicate the defendant’s ease does promised judge replaced when trial and therefore not controlled regular jurors previously with a dis- by the of automatic reversal announced rule after deliberations in Bobo. compounded begun. had be- closely resembling the circumstances More cause failed instruct of State my view are facts case Recogniz- begin deliberations anew. Chestnut, (Tenn.Crim.App. S.W.2d 343 ing no procedural there was rule There, 1982), perm. app. denied. govern replacement regular 10/4/82. place to jurors difficulty staying three of the had juror begun, after had this deliberations testimony during of one of awake Court held that the defendant’s state consti- declared a recess witnesses. had tutional a been jurors from the courtroom when and sent the by the trial court’s action. Deter- violated jurors sleeping. Coun in he noticed of mining the error amounted to a defect informed of the sel for both sides were which is the structure the trial mechanism The record revealed analysis, this court’s observation. through slept five minutes adopted juror a had the conviction and Court reversed begun. The circum- majority in after deliberations have a dissent from the decision 1. I filed adoption procedural again a basis that the need for on the this case illustrate stances of reversal, rule, rule of rather than an automatic promote procedural rule in this area question of whether would better address regular consistency. efficiency and juror may replaced be with an proof. Despite juror point juror had out that the absent missed actually proof, closing argument missed five minutes of of the initial State’s Therefore, view, Appeals applied proof. Court of in my Criminal a harm and no analysis judi- less error in prejudice affirmed verdict error did not result to the jury. holding, of the process. so the intermediate cial court noted that counsel the defendant significant Also is that the defendant in juror sleeping did not seek to have re case, Chestnut, contempora- in did not placed juror with the alternate who had been object neously the trial court’s awake. late, juror arrived reinstate who which he Indeed,

Application challenges appeal. of the harmless error now as error on compel to the facts of this case likewise the issue was not raised in the defendant’s trial, preju- motion conclusion that the defendant was not for new was raised appeal diced for the first time on to the trial court’s error this case. Indeed, actually may Appeals. Generally, the error this case a defendant’s timely object have inured to the benefit of the defendant failure to to an error consti- juror only portion appellate since the tutes a of the missed of the waiver review 13(b) 36(a). 3(e); closing argument. Though Tenn.RApp.P. initial & State’s issue. 36(a), parties apparently agree Tenn.RApp.P., specifically Rule this case that the di- twenty grant- argument, missed minutes of rects that relief on need not be argument, party responsible is difficult to ed “to a for an error or [to conceive how the party] pages transcript, which is contained in two who failed to take whatever action twenty any reasonably prevent nullify could have taken minutes. available to event, given Although opportunity the State was the harmful effect of an error.” repeat appellate have the discretion under its when the courts 52(b), Tenn.R.Crim.P., 13(b), arrived, previously Rule and Rule but declined to do so. As stated, error, Tenn.RApp.P., grant plain relief for the statements of counsel clos- ing preserved if argument Though are not evidence. it is even the error has not been review, privilege, closing argument may appellate extraordinary this is an be waived. remedy applied sparingly Although finding prejudice might which should be Advisory justified clearly stated in the had missed the defen- Commission closing argument, Tenn.RApp.P. to Rule Be- dant’s defendant cer- Comments tainly prejudice in this case neither affected has suffered no from the fact cause the error accused, rights during portion the substantial of the nor that the was absent judicial process, closing argument. prejudice initial resulted in to the State’s application appropriate this is not an case for Moreover, contrary majority’s to the hold- Therefore, my error doctrine. ing, prejudice the error did not result in view, waived, actually ap- the error was judicial process. Though the actions pellate is not available. review of issue the trial court this case were However, considering even the merits of the nothing was an isolated incident. There claim, does, majority as the am suggest the trial court the record to opinion harmless. the error was routinely substitutes alternate reg- subsequently then reinstates the absent CONCLUSION juror. is illus- ular This is not a case which stated, I practice previously For dis- ongoing trative of an erroneous the reasons majority’s judi- from the conclusion might which constitute sent Coleman, during closing argument process. Compare cial (Tenn.1993) (trial mechanism consis- a fundamental defect tently strictly procedural rules under Article 6 of the Tennessee Consti- did not follow selection, yet only tution which is not to harmless regarding this Court prejudicial to the analysis and which was cautioned that further deviation could result opinion judicial process. I am of the process). that nei- analysis applies and in this case was careful to harmless error judicial process ther the nor the case. prejudiced by the error in this

were

Accordingly, I decision of would reverse the and reinstate upholding the judgment of the trial court attempted aggra- conviction for

defendant’s

vated Tennessee, Appellee,

STATE BOYD, Appellant.

Michael Joe Tennessee,

Supreme Court of

at Jackson. 5, 1998.

Jan.

Rehearing Denied March

Case Details

Case Name: State v. Cleveland

Court Name: Tennessee Supreme Court

Date Published: Dec 29, 1997

Citation: 959 S.W.2d 548

Docket Number: 03S01-9612-CR-00118

Court Abbreviation: Tenn.