In Re: Grand Jury Proceedings ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 13, 2010 Session
IN RE: GRAND JURY PROCEEDINGS
Direct Appeal from the Circuit Court of Madison County
No. C09-207 Roger A. Page, Judge
No. W2009-02364-CCA-R3-CO - Filed January 14, 2011
The appellant, Dexter Dodd, appeals the denial of his petition to remove the oath of secrecy
with respect to two grand jury proceedings. Mr. Dodd is pursuing discrimination and tort
claims against certain individuals who allegedly instigated these criminal proceedings against
him, and he alleges that removal of the traditional grand jury oath of secrecy is necessary for
him to effectively pursue these claims. After careful review, we conclude that the appellant’s
appeal is not properly before this court, and we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.
Jon A. York, Jackson, Tennessee, for the appellant, Dexter Dodd.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The record indicates that the appellant in this case works for the United States Postal
Service. At some point in 2008, he was investigated by agents of the United States Postal
Service Office of the Inspector General, and a criminal proceeding was initiated by the
District Attorney’s Office for the 26th Judicial District sometime thereafter. The appellant
was indicted by a Madison County grand jury on a single count of forgery on September 2,
2008, and on five additional counts of theft (in a superseding indictment) on November 3,
2008. The charges were later dropped, and these indictments were dismissed on February
23, 2009.
Sometime later, the appellant commenced a civil lawsuit against the postal inspectors
and employees that allegedly instigated the criminal proceedings against him. In order to
further his cause in that lawsuit, the appellant filed a motion in Madison County Circuit
Court to remove the traditional oath of secrecy surrounding the grand jury proceedings at
issue. A hearing was held on August 10, 2009, at which no proof was taken, and the trial
court entered an order denying the motion on October 19, 2009. The appellant filed a notice
of appeal. The State moved to transfer the appeal from the Court of Appeals to the Court of
Criminal Appeals, claiming that the Court of Appeals lacked jurisdiction to address issues
arising out of a criminal case. See T.C.A. § 16-5-108(a)(2). The Court of Appeals granted
this motion on May 20, 2010, and the appeal now appears before us.
Analysis
Before addressing the appellant’s claim on the merits, we must first assure ourselves
of jurisdiction and confirm that the issue presented is properly before us. By granting the
State’s motion to transfer this appeal to our court, the Court of Appeals has indicated its
belief that this appeal has been “instituted in reference to or aris[es] out of a criminal case.”
See T.C.A. § 16-5-108(a)(2). We agree and express our appreciation to the Court of Appeals
for enforcing this aspect of comity. However, “the fact that we have authority over this case
and the constitutional issue raised does not necessarily mean that the [appellant] has properly
appealed the case.” State v. Phillips, 968 S.W.2d 874, 877 (Tenn. Crim. App. 1996); see
also State v. Powell, No. M2008-02510-CCA-R3-CD, 2010 Tenn. Crim. App. Lexis 464, at
*7 (Tenn. Ct. Crim. App. at Nashville, Nov. 18, 2009) (“[J]ust because this court has subject
matter jurisdiction does not mean that [the appellant] has an appeal as of right in this case.”).
Tennessee Rule of Appellate Procedure 3(b) provides:
Availability of Appeal as of Right by Defendant in Criminal Actions. In
criminal actions an appeal as of right by a defendant lies from any judgment
of conviction entered by a trial court from which an appeal lies to the Supreme
Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a
plea of guilty or nolo contendere, if the defendant entered into a plea
agreement but explicitly reserved the right to appeal a certified question of law
dispositive of the case pursuant to and in compliance with the requirements of
Rule 37 (b)(2)(i) or (iv) of the Tennessee Rules of Criminal Procedure, or if
the defendant seeks review of the sentence and there was no plea agreement
concerning the sentence, or if the issues presented for review were not waived
as a matter of law by the plea of guilty or nolo contendere and if such issues
are apparent from the record of the proceedings already had. The defendant
may also appeal as of right from an order denying or revoking probation, and
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from a final judgment in a criminal contempt, habeas corpus, extradition, or
post-conviction proceeding.
Tenn. R. App. P. 3(b). Here, the indictments against the defendant were dismissed prior to
trial. There has been no judgment of conviction, no plea agreement, and no sentence of any
kind. Nor is this appeal one pertaining to probation, criminal contempt, habeas corpus,
extradition, or a post-conviction proceeding. By its plain terms, Rule 3(b) simply affords the
appellant no means by which to appeal the trial court’s refusal to lift the grand jury’s oath of
secrecy. Similarly, because the criminal proceedings against the appellant have concluded,
he cannot avail himself of Tennessee Rules of Appellate Procedure 9 or 10, which permit this
court to review interlocutory orders of the district court under certain circumstances. See
State v. Todd, No. M2006-01940-CCA-R3-CD, 2007 Tenn. Crim. App. Lexis 434, at *4
(Tenn. Ct. Crim. App. at Nashville, May 31, 2007).
Although the traditional rules do not provide an avenue of appeal for someone who
seeks to remove the grand jury oath of secrecy after a criminal case has concluded, such an
individual is not necessarily barred from seeking appellate review. Rather, he or she may
seek review by means of a petition for certiorari, which may be granted by this court “where
an inferior tribunal . . . is acting illegally [and] when, in the judgment of the court, there is
no other plain, speedy, or adequate remedy.” See T.C.A. § 27-8-101. The appellant in this
case, however, did not choose to seek review of the trial court’s decision via such a petition.
This court does have the inherent authority to treat an improper Rule 3(b) appeal as
a petition for certiorari, if doing so serves the interests of justice. See State v. Leath, 977
S.W.2d 132, 135 (Tenn. Crim. App. 1998). However, we do not feel compelled by notions
of justice to do so in this instance. Grand juries are sacred institutions, and the oath of
secrecy is fundamental to their operation. Any petitioner carries a heavy burden when
attempting to demonstrate that justice requires a court to lift this oath. In this case, we can
discern from the record only the petitioner’s vague assertions that the existing secrecy oath
may someday interfere with the development of his civil case. These assertions are simply
insufficient to lead us to the conclusion that any injustice was done by the circuit court
below.
Conclusion
For the foregoing reason, the appellant’s appeal is dismissed as improper.
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JOHN EVERETT WILLIAMS, JUDGE
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