State of Tennessee v. Robert Allen McKenzie ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
January 7, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 01-C-01-9701-CR-00008
)
) Sumner County
v. )
) Jane W. Wheatcraft, Judge
)
) (Accessory after the Fact to
) Second Degree Murder)
ROBERT ALLEN McKENZIE, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Justin Johnson John Knox Walkup
Attorney at Law Attorney General & Reporter
2131 Murfreesboro Road, Suite 205 500 Charlotte Avenue
Nashville, TN 37217 Nashville, TN 37243-0497
Ellen H. Pollack
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Tom P. Thompson, Jr.
District Attorney General Pro Tempore
P.O. Box 178
Hartsville, TN 37074-0178
John D. Wootten, Jr.
Assistant District Attorney General
P.O. Box 178
Hartsville, TN 37074-0178
OPINION FILED:_________________________________
REVERSED AND DISMISSED
Joe B. Jones, Presiding Judge
OPINION
The issue which this court must resolve is whether the statute of limitations
commences in an accessory after the fact prosecution when (a) the crime is committed or
(b) the principal offender is convicted. The trial court found the statute of limitations does
not commence until the principal offender is convicted. The defendant contends the
statute of limitations commences when the crime of accessory after the fact is committed.
After a thorough review of the record, the briefs submitted by the parties, and the law
pertaining to the issue presented for review, it is the opinion of this court the statute of
limitations commenced to run in this prosecution for accessory after the fact when the
offense was committed. Therefore, the judgment of the trial court is reversed and the
prosecution is dismissed since the prosecution was barred by the statute of limitations.
On the evening of February 20, 1989, Lonnie Malone was murdered in Sumner
County. The investigating officers suspected Robert Spurlock and Ronnie Marshall
murdered Malone. However, the officers were unable to find any evidence which linked
either Spurlock or Marshall to the murder. Approximately fourteen months after the
murder, the officers obtained a series of statements from Henry Junior “Skully” Apple.
The statements were taken between April 27, 1990, and April 30, 1990. Apple’s
statements linked Spurlock and Marshall to Malone’s murder. The Sumner County Grand
Jury indicted Spurlock and Malone on May 9, 1990, for first degree murder.
Spurlock and Malone were tried separately. Both were convicted of first degree
murder and were sentenced to life in the Department of Correction. This court reversed
both convictions and remanded both cases to the trial court for a new trial.1 Spurlock was
tried a second time. He was convicted of murder in the second degree. While Spurlock’s
case was pending in this court, the district attorney general pro tempore discovered neither
Spurlock nor Marshall murdered Malone. In September of 1995, an investigation revealed
that Michael Dancer, Billy Perry, and the defendant were involved in Malone’s murder in
some manner. Shortly thereafter, the prosecutions against Spurlock and Marshall were
1
State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App.), per. app. denied, (Tenn.
1993); State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App.), per. app. denied, (Tenn.
1992).
2
terminated.
The Sumner County Grand Jury returned a presentment charging Michael Dancer
with first degree murder for killing Malone. On March 5, 1996, the grand jury returned a
presentment charging the defendant with the offense of accessory after the fact to first
degree murder. The relevant portion of the presentment states:
ROBERT ALLEN McKENZIE heretofore on or about the 20th
day of February, 1989, . . . after the commission of the felony
of murder by Michael Dancer, and with knowledge or
reasonable ground to believe that Michael Dancer committed
said felony, and with intent to hinder the arrest, trial, conviction
or punishment of Michael Dancer, did unlawfully and
feloniously provide and aid in providing Michael Dancer with
means of avoiding arrest, trial, conviction or punishment, and
thus committed the offense of accessory after the fact of a
felony.
The defendant filed a motion to dismiss the presentment on the ground the
prosecution for the offense alleged in the indictment, accessory after the fact, was barred
because the statute of limitations had expired. When the trial court denied the motion,
holding the statute of limitations for this offense commenced when Dancer was convicted
of murder in the second degree, the defendant entered into a plea agreement with the
State of Tennessee. Subsequently, the defendant entered a plea of guilty to accessory
after the fact to second degree murder, a Class E felony. The trial court found the
defendant was a Range I standard offender and imposed a Range I sentence of
confinement for two (2) years in the Department of Correction in conformity with the plea
agreement. The sentence in this case was to be served concurrently to a sentence the
defendant was serving for the commission of an unrelated offense. The assistant district
attorney general and the trial court agreed to permit the defendant to reserve a certified
question of law, whether the prosecution was barred by the statute of limitations. 2
The record reveals that Dancer, the principal, was convicted of murder in the second
degree after pleading guilty to the offense. This conviction occurred approximately two
months prior to the hearing on the defendant’s motion to dismiss the presentment.
2
Tenn. R. Crim. P. 37(b)(2)(i); Tenn. R. App. P. 3(b)(2).
3
I.
Prior to the enactment of the Tennessee Criminal Sentencing Reform Act of 1989,
being an accessory after the fact to a felony was a criminal offense.3 The punishment for
this offense was a fine not to exceed $1,000 and confinement in the penitentiary for a term
not to exceed five (5) years, or, in the discretion of the trial court, confinement in a county
workhouse or jail for a term not to exceed one (1) year.4
The offense of accessory after the fact was a separate and distinct crime from the
felony committed by the perpetrator of the felony. 5 Accessory after the fact was not a
lesser included offense of the felony committed by the perpetrator of the crime.6
Before an accused could be convicted of being an accessory after the fact to a
felony, the State of Tennessee was required to prove the elements of the offense beyond
a reasonable doubt. The elements of the offense were:
1.) A felony was committed by the principal offender; 7
2.) All of the elements of the felony had been consummated;8
3.) The accused knew or there was a reasonable basis for the accused to believe
the principal offender committed the offense and was subject to being arrested, indicted,
or convicted of the felony; 9
4.) The accused harbored, concealed, or aided the principal offender; 10
5.) The intent of the accused in assisting the principal offender was for the purpose
3
Tenn. Code Ann. § 39-1-306 (Repl. 1982).
4
Tenn. Code Ann. § 39-1-307 (Repl. 1982).
5
Monts v. State, 214 Tenn. 171, 192, 379 S.W.2d 34, 43 (1964); State v. Hoosier,
631 S.W.2d 474, 476 (Tenn. Crim. App.), per. app. denied, (Tenn. 1982); see Pennington
v. State, 478 S.W.2d 892, 897 (Tenn. Crim. App. 1971), cert. denied, (Tenn. 1992) (“An
accessory after the fact is not an accomplice.”).
6
State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn. Crim. App.), per. app. denied,
(Tenn. 1989); Hoosier, 631 S.W.2d at 476.
7
Tenn. Code Ann. § 39-1-306 (Repl. 1982).
8
Baker v. State, 184 Tenn. 503, 506, 201 S.W .2d 667, 668 (1947).
9
Tenn. Code Ann.§ 39-1-306 (Repl. 1982).
10
Tenn. Code Ann. § 39-1-306 (Repl. 1982).
4
of helping him avoid or escape arrest, trial, conviction or punishment;11 and
6.) The principal offender was convicted of the felony. 12
In this case, the defendant admitted these elements of accessory after the fact
existed when he entered his plea of guilty to the offense. This court must now consider
when the statute of limitations commenced in this case.
II.
As previously stated, the crime of accessory after the fact is a felony. The maximum
punishment for this offense was a fine not to exceed $1,000 and confinement in the
Department of Correction for a term not to exceed five (5) years.13
The statute in effect when this offense was committed provided that the prosecution
for crimes punishable by confinement for a term not to exceed five (5) years was required
to be commenced within two (2) years.14 The statute provided:
(a) Any person may be prosecuted, tried and punished for any
offense punishable with death or by imprisonment in the
penitentiary during life, at any time after the offense shall have
been committed.
(b) Prosecutions for any offense punishable by imprisonment
in the penitentiary when the punishment is expressly limited to
five (5) years or less, shall be commenced within two (2) years
next after the commencement of the offense. . . .
*****
(c) Prosecution for any offense punishable by imprisonment in
the penitentiary other than as specified in subsection (a) or (b),
shall be commenced within four (4) years next after the
commission of the offense.
In the context of this case, the relevant language of the statute is “shall be
11
Tenn. Code Ann. § 39-1-306 (Repl. 1982). The question of intent is a matter to
be decided by the trier of fact from the evidence and reasonable inferences which may be
drawn from the evidence. Webster v. State, 544 S.W.2d 922, 924 (Tenn. Crim. App.), cert.
denied (Tenn. 1976).
12
Wilson v. State, 190 Tenn. 592, 596, 230 S.W.2d 1014, 1016 (1950)
13
Tenn. Code Ann. § 39-1-307 (Repl. 1982).
14
Tenn. Code Ann. § 40-2-101 (Repl. 1982).
5
commenced within two (2) years next after the commission of the offense.” (Emphasis
added). It must be noted that the statute does not distinguish between principal offenders,
aiders and abettors, accessories before the fact, and accessory after the fact.
The determination of the certified question in this case hinges upon the intent of the
Tennessee General Assembly when this statute was enacted.
A.
The polestar of statutory construction is the intent of the legislature when a statute
was enacted.15 A court’s role in the interpretation of a statute is to “ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.”16 The common law rules of construction developed through
the years are aids which assist a court in making this determination.17
The intent of the legislature is to be derived from the face of the statute if the
verbiage contained within the four corners of the statute is plain, clear, and unambiguous. 18
In other words, “[u]nambiguous statutes must be construed to mean what they say.”19
In this case, the language of the statute in question is plain, clear, and
unambiguous.
B.
The word “shall” when used in a statute mandates the provisions of the statute.20
In the context of this case, the Tennessee General Assembly required the State of
15
Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
16
Owens, 908 S.W.2d at 926; see Hicks v. State, 945 S.W.2d 706, 707 (Tenn.
1997); State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997); State v. Sliger, 846 S.W.2d 262,
263 (Tenn. 1993).
17
Roberson v. University of Tennessee, 912 S.W.2d 746, 747 (Tenn.), per. app.
denied (Tenn. 1995).
18
Austin v. Memphis Publ’g Co., 655 S.W.2d 146, 149 (Tenn. 1983).
19
Roberson, 912 S.W.2d at 747.
20
See, e.g., Blankenship v. State, 223 Tenn. 158, 165, 443 S.W.2d 442, 445 (1969);
Stubbs v. State, 216 Tenn. 567, 576, 393 S.W.2d 150, 154 (1965); State v. Gauldin, 737
S.W.2d 795, 798 (Tenn. Crim. App.), per. app. denied, (Tenn. 1987).
6
Tennessee to commence a prosecution punishable by imprisonment for a term not
exceeding five (5) years ”next after the commission of the offense.” In other words, the
State of Tennessee was required to commence the prosecution within two (2) years after
the defendant committed the offense of accessory after the fact. Since the offense was
alleged to have occurred on February 20, 1989, and the presentment was returned on
March 5, 1995, it is obvious the prosecution against the defendant was not commenced
within two (2) years “next after the commission of the offense” as mandated by the statute.
This court must now determine if there were any facts which tolled the running of
the statute of limitations in this case.
C.
When a prosecution is commenced by a presentment after the expiration of the
statute of limitations, the State of Tennessee must allege in the presentment and prove the
specific facts which the state contends tolled the running of the statute of limitations.21 If
the presentment does not allege and prove sufficient facts, or any facts, which the State
of Tennessee contends tolled the statute of limitations, the accused may not be convicted
of the offense alleged in the presentment. Consequently, such a presentment must be
dismissed.22
21
State v. Henry, 834 S.W.2d 273, 275-76 (Tenn. 1992); State v. Davidson, 816
S.W.2d 316, 318 (Tenn. 1991); State v. Comstock, 205 Tenn. 389, 393, 326 S.W.2d 669,
671 (1959); State v. Shaw, 113 Tenn. 536, 538, 82 S.W. 480 (1904); State v. White, 939
S.W.2d 113, 115 (Tenn. Crim. App. 1996); Morgan v. State, 847 S.W.2d 538, 542 (Tenn.
Crim. App.), per. app. denied (Tenn. 1992); State v. Seagraves, 837 S.W.2d 615, 619
(Tenn. Crim. App.), per. app. denied (Tenn. 1992); State v. Tidwell, 775 S.W.2d 379, 389
(Tenn. Crim. App.), per. app. denied (Tenn. 1989); State v. Hix, 696 S.W.2d 22, 25 (Tenn.
Crim. App. 1984); State v. Thorpe, 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980); State v.
House, 2 Shannon’s Cases 610, 611 (1877).
In State v. Messamore, 937 S.W.2d 916, 919 (Tenn. 1996), the supreme court
stated that if the statute of limitations was tolled by other means than an indictment,
presentment, or information, this rule does not apply. Thus, if the prosecution was
commenced timely by other means (e.g., an arrest warrant or an affidavit of complaint), but
the charging instrument is not returned until after the expiration of the statute of limitations,
the state is not required to allege why the statute of limitations was tolled.
22
Davidson, 816 S.W.2d at 321; Comstock, 205 Tenn. at 393, 326 S.W.2d at 671;
Shaw, 113 Tenn. at 538, 82 S.W. at 480; Seagraves, 837 S.W.2d at 619; Tidwell, 775
S.W.2d at 389-90; House, 2 Shannon’s Cases at 611.
7
An accused may waive the statute of limitations as a defense.23 However, the
waiver must be knowingly, voluntarily, and intelligently entered; and it must appear on the
face of the record that the accused did in fact waive this defense.24 In this case, the record
is devoid of any facts which would indicate the defendant waived the statute of limitations
defense. To the contrary, the defendant asserted this defense by filing a motion to dismiss
the presentment on this ground. He also reserved a certified question of law with the
approval of the trial court and the assistant district attorney general so he could litigate the
issue of whether the statute of limitations had expired before the presentment was
returned.
Here, the presentment does not allege any facts, which, if established, would toll the
commencement of the statute of limitations. Therefore, the judgment of the trial court must
be reversed and the prosecution for accessory after the fact dismissed.
D.
The holding in this case is not intended as a criticism of General Thompson, who
served as Attorney General Pro Tempore after the reversal of the convictions and remand
for new trials in the Spurlock and Marshall cases. In other words, he did not initiate the
original prosecution. The presentment in this case was submitted to the Sumner County
Grand Jury after General Thompson discovered Spurlock and Marshall were not the
individuals who murdered Malone. General Thompson notified defense counsel that their
respective clients did not murder the victim, the requisite pleadings were filed in the trial
court, the prosecutions were dismissed as to Spurlock and Marshall, and the presentments
were returned against Dancer and the defendant.
General Thompson is to be commended for his diligence in continuing to investigate
the Malone murder, his frankness with defense counsel after he was satisfied their clients
did not commit the murder, and his effort to prosecute those individuals who were in fact
responsible for Malone’s murder. His actions in this regard showed strict compliance with
23
State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993).
24
Id.
8
the ethics of his office and the duty of a district attorney general established by the United
States Supreme Court 25 and the Tennessee Supreme Court.26
___________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
WILLIAM M. BARKER, JUDGE
______________________________________
JOE G. RILEY, JUDGE
25
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314,
1321 (1935).
26
State v. Fields, 7 Tenn. 140, 145046 (1823); In Re Death of Reed, 770 S.W.2d
557, 560 (Tenn. Crim. App.), per. app. denied (Tenn. 1989).
9