Howard Hawk Willis v. Grand Jury Foreperson Beverly Johnson

09/27/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 5, 2018
HOWARD HAWK WILLIS v.
GRAND JURY FOREPERSON BEVERLY JOHNSON
Appeal from the Chancery Court for Bradley County
No. 2017-CV-173 Jerri S. Bryant, Chancellor
No. E2017-02225-COA-R3-CV
The pro se appellant, a state inmate incarcerated on capital murder convictions, filed a
petition for a writ of mandamus in the Bradley County Chancery Court (“trial court”).
Claiming to have information regarding a homicide other than those for which he was
convicted, the petitioner requested that the trial court direct the Bradley County Grand
Jury foreperson to grant him the right to testify before the grand jury pursuant to
Tennessee Code Annotated § 40-12-104 (2014). The petitioner subsequently filed a
motion to be transported for a hearing, requesting that the trial court issue a habeas
corpus ad testificandum. The State of Tennessee (“the State”) then filed a response in
opposition to the petition for writ of mandamus. The petitioner responded by filing a
motion to strike the State’s response, arguing that the State was not a proper party to this
action. On October 26, 2017, the trial court entered an order dismissing the petition for
writ of mandamus, finding, inter alia, that the petitioner possessed no mandatory right to
appear before the grand jury. The petitioner has appealed. Discerning no reversible
error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Howard Hawk Willis, Nashville, Tennessee, Pro Se.
Crystal R. Freiberg, Bradley County Attorney, Cleveland, Tennessee, for the appellee,
Grand Jury Foreperson Beverly Johnson.
OPINION
I. Factual and Procedural Background
The petitioner, Howard Hawk Willis, was convicted following a jury trial in 2010
of two counts of premeditated first-degree murder and one count of felony murder in the
perpetration of a kidnapping for the October 2002 murders of two teenaged victims,
Adam Chrismer and Samantha Chrismer. See State v. Willis, 496 S.W.3d 653, 665-66
(Tenn. 2016), cert. denied, 137 S. Ct. 1224 (Mar. 6, 2017). Mr. Willis was sentenced to
death for each conviction, and his convictions and sentences were upheld on direct appeal
by the Tennessee Court of Criminal Appeals, see State v. Willis, No. E2012-01313-CCA-
R3-DD, 2015 WL 1207859, at *1 (Tenn. Crim. App. Mar. 13, 2015), and the Tennessee
Supreme Court, see State v. Willis, 496 S.W.3d at 761. Mr. Willis remains confined at
the Riverbend Maximum Security Institution in Nashville.
On July 5, 2017, Mr. Willis initiated the instant action by filing a petition for a
writ of mandamus in the trial court, claiming to have “credible evidence” regarding the
2002 murder of his stepfather, Samuel Johnson Thomas, and alleged “official misconduct
that has occurred within the investigation of [Mr. Thomas’s] murder by the Bradley
County Sheriff’s Department.” Naming as a “defendant”/respondent the then foreperson
of the Bradley County Grand Jury, Beverly Johnson (“the Foreperson”), Mr. Willis
requested that the trial court issue a writ of mandamus ordering the Foreperson to “meet
with [Mr. Willis] allowing him to provide the evidence he has in the murder of Samuel
Johnson Thomas and of official misconduct in said investigation thereof.” In support of
his petition, Mr. Willis relied on Tennessee Code Annotated § 40-12-104(a)-(c)
concerning witnesses in grand jury proceedings.
Mr. Willis attached several documents to his petition, including affidavits
executed by him; correspondence initiated by him with the Tennessee Attorney General,
Tenth Judicial District Attorney General, Bradley County Sheriff’s Department, and the
previous Bradley County Grand Jury foreperson; two petitions he had prepared to file in
the Bradley County Criminal Court (“criminal court”) seeking to testify before the grand
jury; and a printout from the Tennessee Offender Management Information System
(“TOMIS”) reflecting his security status as an inmate. An attached criminal court
petition, styled as a “Petition to Enforce the Petitioners [sic] Statutory Right to Testify
Before the Grand Jury,” included a certificate of service executed by Mr. Willis,
indicating that he had served the petition on the “Bradley County District Attorney’s
Office” on May 2, 2014. In a subsequent letter to the state attorney general at the time,
Mr. Willis asserted that the criminal court had not filed this petition upon the alleged
direction of the criminal court judge and district attorney general. Mr. Willis’s
attachments to the petition at issue in the present action also included an undated
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“Petition for Writ of Habeas Corpus Ad Testificandum,” styled for filing in the criminal
court with the Foreperson and District Attorney General Steven Crump named as
“defendants”/respondents.
As the Foreperson notes, Mr. Willis had also sought injunctive relief in federal
court under 42 U.S.C. § 1983, filing a complaint against General Crump in the United
States District Court for the Eastern District of New York, which was subsequently
transferred to the United States District Court for the Eastern District of Tennessee at
Chattanooga. See Willis v. Crump, No. 1:15-cv-258-CLC-CHS, 2015 WL 8781215, at *1
n.1 (E.D. Tenn. Dec. 14, 2015) (explaining that at the time he filed the federal complaint,
Mr. Willis was in the Eastern District of New York “in connection with a resentencing
hearing on a cocaine conspiracy conviction”). Mr. Willis requested that the federal court
enjoin General Crump and “‘state officials, employees, assigns, and et als [sic]’ from
depriving [Mr. Willis] of his right to present evidence to a Bradley County grand jury—a
right allegedly secured to him by Tenn. Code Ann. § 40-12-104(a) and (b).” Id. at *1.
Determining, inter alia, that Mr. Willis’s complaint did “not present a [federal]
constitutional violation,” the federal court dismissed Mr. Willis’s complaint in December
2015. Id. at *4.
On July 14, 2017, Mr. Willis filed in the trial court a “Motion to be Transported
for Hearing,” requesting that the trial court issue a habeas corpus ad testificandum “to
insure [Mr. Willis’s] presence for hearing.” He concomitantly filed a “Petition for Writ
of Habeas Corpus Ad Testificandum” as well. On July 26, 2017, the State, acting
through General Crump, filed a response in the trial court in opposition to Mr. Willis’s
petition for writ of mandamus, arguing, inter alia, that “[t]here is no basis, process or
authority for transporting an inmate to appear before a grand jury.” The State also
asserted that the issuance of a writ of mandamus would not be proper because Mr. Willis
was “attempting to collaterally attack his convictions.” The State summarized that “[i]n
all of his material presented, [Mr. Willis] indicates that if he is allowed to present
evidence, then that evidence of a past crime would somehow exonerate him with regard
to his current convictions.”
The State attached to its response, inter alia, a letter dated October 11, 2016, from
Bradley County Criminal Court Judge Sandra N.C. Donaghy to Mr. Willis, in which
Judge Donaghy had responded to a letter previously written by Mr. Willis to the
Foreperson, who had requested Judge Donaghy’s advice in responding. Judge Donaghy
stated in pertinent part:
It is the duty of the district attorney general to prosecute all
violations of the state criminal statutes and perform all prosecutorial
functions attendant thereto for the protection of the state or in public
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interest. Accordingly, I will transfer the materials sent to Ms. Johnson to
General Crump for investigation and review. I encourage you to work with
his office in this process.
I agree with your assertion that T.C.A. [§] 40-12-104 allows a
citizen to apply to present a case to the grand Jury for review. The Grand
Jury will allow you to present this matter once you are released from
custody. There is no basis, process, or authority for transporting an inmate
to appear before a grand jury. The system has to balance your interest in
providing information against the integrity of the correctional system. You
can do exactly what you are trying to do by providing your information to
the District Attorney through letters, interviews, and depositions.
Mr. Willis filed a motion to strike the State’s response on August 11, 2017, asserting that
the State lacked standing and that if representation were provided to the Foreperson, it
should be by the Bradley County attorney. The record includes no indication that the trial
court ruled on the motion to strike.1
On October 26, 2017, the trial court entered an order dismissing Mr. Willis’s
petition for writ of mandamus. The court specifically found in relevant part:
This cause came for review on the Petition for Writ of Mandamus
wherein [Mr. Willis] has requested to exercise his “rights” under T.C.A. §
40-12-104 to testify before the Grand Jury. [Mr. Willis] claims to have
knowledge concerning the murder of Samuel Johnson Thomas. [Mr.
Willis] claims to have credible evidence regarding the Samuel Johnson
Thomas [homicide] and official misconduct which has occurred in the
investigation of his murder by the Bradley County Sheriff’s Department.
[Mr. Willis] claims that he tried to provide the evidence to the Bradley
County District Attorney General’s Office and the Bradley County
Sheriff’s Department, both of whom he alleges did not respond to him.
This matter was previously brought to Judge Sandra Donaghy’s attention
pursuant to the petition filed by [Mr. Willis] and apparently, Judge
Donaghy, if the statements of [Mr. Willis] are true, told [Mr. Willis] that
the Grand Jury would allow him to present his evidence once he is released
from custody. Judge Donaghy previously told [Mr. Willis] there is no
basis, process or authority for transporting an inmate to appear before the
Grand Jury.
1
We will address the resolution of Mr. Willis’s motion to strike the State’s response in a subsequent
section of this Opinion.
4
This Court will further note the Grand Jury has the authority to send
for witnesses.
This Court has read the file sent by [Mr. Willis] to the Chancery
Court for Bradley County, Tennessee. This Court is unable to determine
whether or not the information in this file has been given to the District
Attorney General or to the Grand Jury Foreperson and this Court finds the
documentation provided would allow others to present the same
information to the Grand Jury. [Mr. Willis] alleges there is a federal
investigator who has investigated these facts and has information. That
federal investigator would be allowed to provide the information to the
Grand Jury.
It is also unclear whether [Mr. Willis] is serving a sentence for the
same crime he is wanting to be investigated. [Mr. Willis] has alleged he
has at least one attorney and that attorney could, likewise, appear before
any Grand Jury. This Court will note the statute provides that [Mr. Willis],
may testify before the Grand Jury. This is not mandatory and there are
other venues that could be pursued in this matter.
Therefore the Petition for Writ of Mandamus is hereby dismissed
and a copy of this order will be provided to the District Attorney General’s
Office for such other action as the District [Attorney] deems appropriate.
On November 13, 2017, Mr.Willis filed a notice of appeal with this Court and, on
the same day, a “Motion for Reconsideration of the Writ of Mandamus” with the trial
court. The record contains no disposition of Mr. Willis’s motion for reconsideration. We
note that the Tennessee Rules of Civil Procedure do not authorize motions to reconsider a
trial court order. See Goetz v. Autin, No. W2015-00063-COA-R3-CV, 2016 WL 537818,
at *5 (Tenn. Ct. App. Feb. 10, 2016), perm. app. denied (Tenn. June 24, 2016) (citing
Harris v. Chern, 33 S.W.3d 741, 743 (Tenn. 2000)). Moreover, we determine that
because the notice of appeal was filed on the same day as the motion for reconsideration,
subject matter jurisdiction properly transferred to this Court upon the filing of the notice
of appeal. We therefore discern no error in the trial court’s declining to address the
motion for reconsideration and essentially treating the motion as waived.
II. Issues Presented
Mr. Willis presents five issues on appeal, which we have restated as follows:
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1. Whether the trial court abused its discretion by arbitrarily denying
Mr. Willis’s writ of mandamus.
2. Whether Mr. Willis has a due process right, pursuant to Tennessee
Code Annotated § 40-12-104(a)-(c), to present testimony and other
evidence regarding the homicide of Mr. Thomas and investigation
therein before the Foreperson and two grand jury members of his
choosing; and if so, whether the trial court violated Mr. Willis’s due
process right to present such testimony and other evidence.
3. Whether the trial court clerk and master violated Tennessee Rules of
Civil Procedure 4.01, 4.02, and 5.02 and Mr. Willis’s rights to due
process and court access under the First and Fourteenth
Amendments to the United States Constitution and Article 1,
Sections 8, 14, and 17 of the Tennessee Constitution by declining to
issue and serve a summons upon the Foreperson with a copy of Mr.
Willis’s petition.
4. Whether the trial court violated Rules 1.1, 1.2, and 2.12 of the
Tennessee Supreme Court Rule 10 Code of Judicial Conduct by
failing to properly supervise the trial court clerk and master and by
failing to provide a remedy for the clerk and master’s purported
violations.
5. Whether actions of concealment allegedly committed by the
Foreperson, the Bradley County District Attorney General, and
subordinates of the Bradley County District Attorney General in
relation to the investigation of Mr. Thomas’s homicide violated Mr.
Willis’s rights to due process and court access under the First and
Fourteenth Amendments of the United States Constitution and
Article I, Sections 8, 14, and 17 of the Tennessee Constitution.
The Foreperson presents an additional issue, which we have restated slightly as follows:
6. Whether Mr. Willis’s claims are barred by the principles of res
judicata and collateral estoppel.
III. Standard of Review
Our review of the trial court’s judgment following a non-jury proceeding is de
novo upon the record with a presumption of correctness as to the trial court’s findings of
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fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d);
Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the
evidence to preponderate against the trial court’s findings of fact, the evidence must
support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins.
Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions
of law de novo with no presumption of correctness. Hughes v. Metro. Gov’t of Nashville
& Davidson Cty, 340 S.W.3d 352, 360 (Tenn. 2011).
A trial court’s decision concerning whether to grant a writ of mandamus is a
discretionary one. Grant v. Foreperson for Bradley Cty. Grand Jury, No. E2009-01450-
COA-R3-CV, 2010 WL 844912, at *5 (Tenn. Ct. App. Mar. 11, 2010) (“[I]t has long
been settled in Tennessee that the granting of the writ of mandamus, even when the right
thereto is clear, lies in the sound discretion of the court.”). As this Court has explained,
“a trial court will be found to have ‘abused its discretion’ only when it applies an
incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the complaining party.” In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct.
App. 2005), perm. app. denied (Tenn. Mar. 12, 2007) (internal citations omitted).
In reviewing pleadings, we “must give effect to the substance, rather than the form
or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.
2010)). We note also that pleadings “prepared by pro se litigants untrained in the law
should be measured by less stringent standards than those applied to pleadings prepared
by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568
(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young
v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit
of counsel are “entitled to fair and equal treatment by the courts,” but we “must not
excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901,
903 (Tenn. Ct. App. 2003).
IV. Motion to Strike the State’s Response
Although not raised as an issue on appeal by Mr. Willis, we find it necessary at the
outset to address the disposition of Mr. Willis’s motion to strike the State’s response. In
its order, the trial court did not address Mr. Willis’s motion to strike and did not refer to
the State’s response. In his “Motion for Reconsideration,” Mr. Willis argued, inter alia,
that if the trial court had allowed a hearing on the petition, he “would have shown” that
the Foreperson “would be properly represented” by the county attorney. We note that in
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the State’s response, the district attorney general did not give notice of representation of
the Foreperson and that on appeal, the Foreperson is represented by the county attorney.
See, e.g., Cooley v. May, No. M2001-01162-COA-R3-CV, 2001 WL 1660830, at *3
(Tenn. Ct. App. Dec. 28, 2001) (concluding that the district attorney general did not have
standing to file a motion to dismiss a state prisoner’s petition for writ of mandamus
requesting that the county sheriff be required to transfer his sentence credits to the state
department of correction and that the sheriff should be properly represented by the county
attorney).
In this case, the State did not file a motion to dismiss and appears to have filed a
response through the district attorney general as an interested party who, as asserted in
the State’s response, would have the responsibility if Mr. Willis’s petition were granted
“to transport [Mr. Willis] and to bear all the associated costs and security this would
necessitate.” In addition, Mr. Willis, although not naming the district attorney general in
his petition in the instant action, did attach to his motion to transport a copy of his
petition for writ of mandamus styled as a separate action in the criminal court against the
Foreperson and General Crump. He also attached to his petition a copy of the criminal
court petition he had served on the district attorney general’s office in 2014, and he had
previously named General Crump as a respondent to his petition seeking injunctive relief
in federal court. Inasmuch as Mr. Willis had clearly notified the district attorney general
of his intent to seek the relief requested in this action and inasmuch as he has not raised
an issue on appeal regarding the resolution of his motion to strike the State’s response,
we determine any such issue to be waived. See Tenn. R. App. P. 13(b) (“Review
generally will extend only to those issues presented for review.”).
V. Denial of Petition for Writ of Mandamus
Mr. Willis delineates five issues on appeal, all of which relate to what we
determine to be the dispositive issue: whether the trial court abused its discretion by
arbitrarily dismissing Mr. Willis’s petition for a writ of mandamus. Mr. Willis argues
that he has a due process right, pursuant to Tennessee Code Annotated § 40-12-104(a)-
(c), to present testimony and other evidence regarding the homicide of Mr. Thomas and
the related investigation before the Foreperson and two grand jury members of his
choosing. He thereby argues that by dismissing his petition, the trial court violated his
constitutional due process rights, as well as his right to access state courts. Mr. Willis
further argues that the trial court clerk and master violated rules of civil procedure and
Mr. Willis’s due process court access rights by declining to issue and serve a summons
on the Foreperson with Mr. Willis’s petition and that the chancellor violated rules of
judicial conduct and Mr. Willis’s due process and court access rights by failing to
properly supervise the trial court clerk and master in this matter. Upon a thorough review
of the record and applicable authorities, we conclude that Mr. Willis has not established a
8
specific and legal right to present evidence to a grand jury panel and, moreover, that
issuing a writ of mandamus to Mr. Willis in this action would manifestly prejudice public
interest. We discern no violation of Mr. Willis’s due process or court access rights and
no abuse of discretion in the trial court’s denial of his petition for writ of mandamus.
The issuance of a writ of mandamus is an extraordinary remedy. State ex rel.
Weaver v. Ayers, 756 S.W.2d 217, 226 (Tenn. 1988). As this Court has previously
explained:
The general rule regarding the issuance of a writ of mandamus is
that the writ is not issued to control or coerce discretionary power by a
board or officer, but will lie to enforce the performance of an official duty
and to compel the exercise of power. State v. Mayor & Aldermen, 184
Tenn. 1, 195 S.W.2d 11 (1946); White’s Creek Tpk. Co. v. Marshall, 61
Tenn. (2 Baxt.) 104 (1872); and Barnhart v. Neisler, 25 Tenn. (6 Hum.)
493 (1846). In determining whether an act is a “ministerial act” for which
mandamus may lie, courts look to whether the law defines the duties to be
performed “with such precision and certainty as to leave nothing to the
exercise of judgement.” Lamb v. State, 207 Tenn. 159, 338 S.W.2d 584,
586 (1960) (quoting C.J.S. Mandamus *sec 63, page 101). Where the duty
involves the exercise of discretion or judgement the act is discretionary. Id.
A discretionary act, which will not support the issuance of a mandamus to
compel performance, is defined as one done by an official who has lawful
authority to determine whether or not he will perform the act. Bradley v.
State ex rel. Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969).
For an act to be enforced by a writ of mandamus, the
act must be purely “ministerial.” Peerless Construction Co.
v. Bass, 158 Tenn. 518, 520, 14 S.W.2d 732 (1929). If the
right to have the act performed is doubtful, the right must be
first established in some other form of action. Mandamus is a
summary remedy, extraordinary in its nature, and to be
applied only when a right has been clearly established.
Peerless, 14 S.W.2d at 733. The writ of mandamus will not
lie to control official judgment or discretion, but it is the
proper remedy where the proven facts show a clear and
specific legal right to be enforced, or a duty which ought to be
and can be performed. State ex rel. Weaver v. Ayers, 756
S.W.2d 217, 221 (Tenn. 1988), citing State ex rel. Ragsdale v.
Sandefur, 215 Tenn. 690, 696, 389 S.W.2d 266, 269 (1965).
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Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn. Ct. App. 1990).
Furthermore, a mandamus will not lie where a right is doubtful. State ex
rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988).
Generally, where a public official has any discretion concerning the
doing of an act, the issuance of a mandamus is not available. Davis v.
Fentress County Bd. Of Educ., 218 Tenn. 280, 402 S.W.2d 873 (1966).
Where the exercise of judgment or discretion is required, he may be
compelled by the issuance of a mandamus to perform the duty, however his
judgment regarding the details in the performance of the duty are to be left
unfettered. Blair v. State ex rel. Watts, 555 S.W.2d 709 (Tenn. 1977).
Where an official has the duty to do an act only after making
determinations, evaluations or judgments, a w[r]it of mandamus will not lie
to do the act in any particular way. Seagle-Paddock Pools of Memphis, Inc.
v. Benson, 503 S.W.2d 93 (Tenn. 1973). A court will not substitute its
judgment for that of an official vested with discretion unless the official has
clearly acted arbitrarily and without regard to his duty in the exercise of that
discretion. See State v. Mayor & Aldermen, 184 Tenn. 1, 195 S.W.2d 11,
13 (1946).
Tusant v. City of Memphis, 56 S.W.3d 10, 18-19 (Tenn. Ct. App. 2001), perm. app.
denied (Tenn. Feb. 6, 2001).
Regarding due process, our Supreme Court has explained:
Both the United States and Tennessee Constitutions protect the right
to due process of law. Section 1 of the Fourteenth Amendment to the
United States Constitution provides, “No State shall make or enforce any
law which . . . deprive[s] any person of life, liberty, or property, without
due process of law . . . .” Article I, section 8 of the Tennessee Constitution
states, “[N]o man shall be taken or imprisoned, or disseized of his freehold,
liberties or privileges, or outlawed, or exiled, or in any manner destroyed or
deprived of his life, liberty or property, but by the judgment of his peers, or
the law of the land.” We have determined that this provision of the
Tennessee Constitution is “synonymous” with the Due Process Clause of
the Fourteenth Amendment. Gallaher [v. Elam ], 104 S.W.3d [455,] 463
[(Tenn. 2003)] (citing Riggs [v. Burson ], 941 S.W.2d [44,] 51 [(Tenn.
1997)]).
Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 715 (Tenn. 2017). As to state
court access, Article I, Section 17 of the Tennessee Constitution provides:
10
That all courts shall be open; and every man, for an injury done him in his
lands, goods, person or reputation, shall have remedy by due course of law,
and right and justice administered without sale, denial, or delay. Suits may
be brought against the State in such manner and in such courts as the
Legislature may by law direct.
In his petition for writ of mandamus, Mr. Willis requested that the trial court order
the Foreperson to meet with him and allow him to provide evidence related to the murder
of Mr. Thomas and investigation of that murder. In his subsequent motion for transport
and petition for writ of habeas corpus ad testificandum, Mr. Willis requested that he be
transported to testify before the grand jury. As a first step in determining whether the
remedy of a writ of mandamus is appropriate, we must determine whether the statute at
issue “establishes a clear duty to perform a ministerial task” on the part of the
Foreperson. See Tenn. Cmty. Orgs. v. Tenn. Dep’t of Fin. & Admin., No. M2008-02154-
COA-R3-CV, 2009 WL 2393109, at *7 (Tenn. Ct. App. Aug. 3, 2009). In this case, we
must therefore determine whether the statute upon which Mr. Willis relies to assert his
right, Tennessee Code Annotated § 40-12-104, establishes a clear duty on the part of the
Foreperson, the sole respondent named in the petition, to perform the task requested and,
if so, whether that task is ministerial in nature.
When interpreting statutes, we adhere to the following longstanding principles:
When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a
statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.”
Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any
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interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at
the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).
The statute at issue, Tennessee Code Annotated § 40-12-104, provides in pertinent
part:
(a) Any person having knowledge or proof of the commission of a
public offense triable or indictable in the county may testify before
the grand jury.
(b) The person having knowledge or proof shall appear before the
foreman. The person may also submit the sworn affidavits of others
whose testimony the person wishes to have considered.
(c) The person shall designate two (2) grand jurors who shall, with the
foreman, comprise a panel to determine whether the knowledge
warrants investigation by the grand jury. The panel may consult the
district attorney general or the court for guidance in making its
determination. The majority decision of the panel shall be final and
shall be promptly communicated to the person along with reasons
for the action taken.
(Emphasis added.)
The trial court in its order referenced the use of the discretionary auxiliary verb,
“may,” in subsection -104(a) in determining that the provision did not mandate that the
potential witness testify before the grand jury. See, e.g., Bellamy v. Cracker Barrel Old
Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (explaining that in contrast to the
use of “may,” “‘[w]hen ‘shall’ is used . . . it is ordinarily construed as being mandatory
and not discretionary’” (quoting Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)));
Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 194 (Tenn. Ct. App. 2016), perm.
app. denied (Tenn. Dec. 15, 2016) (“The provision, however, employs the discretionary
auxiliary verb, ‘may,’ and therefore does not require that a party wishing to mediate an
initial decision demand such mediation within thirty days.”). In his interpretation of the
statute, Mr. Willis instead emphasizes the use of the mandatory auxiliary verb, “shall,” in
12
subsections -104(b) and -104(c), as underlined above, to conflate a portion of subsection -
104(a) with -104(b)-(c) and essentially argue that the statute provides in pertinent part:
Any person having knowledge or proof of the commission of a public
offense triable or indictable in the county . . . .
. . . shall appear before the foreman. . . .
[and] shall designate two (2) grand jurors who shall, with the foreman,
comprise a panel to determine whether the knowledge warrants
investigation by the grand jury.
Mr. Willis thereby argues that his appearance before a grand jury panel comprised of the
Foreperson and two grand jurors of Mr. Willis’s choosing is mandated by Tennessee
Code Annotated § 40-12-104(a)-(c). We disagree.
The plain language and organization of Tennessee Code Annotated § 40-12-104
indicate that subsection -104(a) establishes a person’s discretionary opportunity to testify,
using the discretionary auxiliary verb, “may,” before a grand jury panel. Once it has been
established that such a person is going to testify, subsections -104(b)-(c) then mandate,
using the mandatory auxiliary verb, “shall,” much of the manner in which the testimony
shall be presented, including the witness’s appearance before the Foreperson, the
composition of the grand jury panel, and the finality of the grand jury panel’s decision
regarding whether an investigation is warranted. Mr. Willis has taken out of context the
legislature’s use of “shall” in describing the manner in which testimony shall be
presented in order to assert that a person’s testimony before a grand jury panel is
mandated if the person claims to have “knowledge or proof of the commission of a public
offense triable or indictable in the county.” See Tenn. Code Ann. § 40-12-104(a). We
determine that the unambiguous language of the statute provides that such testimony is
discretionary, not mandatory. See id.; In re Estate of Tanner, 295 S.W.3d 610 at 614
(“When a statute is clear, we apply the plain meaning without complicating the task.”).
In support of his argument that his right to appear before a grand jury panel is
mandatory, Mr. Willis relies in part on an opinion issued by the Tennessee Attorney
General in 1992. Tenn. Op. Atty. Gen. 92-53, 1992 WL 545029 (Sept. 16, 1992). We
note that “although opinions of the Attorney General may be persuasive authority, they
are not controlling.” Beacon4, 514 S.W.3d at 173. However, we do afford such opinions
“‘considerable deference,’” particularly because “‘government officials rely upon them
for guidance.’” See id. (quoting State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995)).
When questioned regarding whether “potential defendants” could be prohibited from
testifying before a grand jury, the attorney general opined that both a “court authorized
13
by law to charge the grand jury” and the district attorney general were “without authority
to prohibit potential defendants from appearing and giving evidence before the grand
jury.” Tenn. Op. Atty. Gen. 92-53, 1992 WL 545029, at *1. The attorney general
explained in relevant part:
Rule 6(j), Tenn. R. Crim. P., which grants without limitation power to the
grand jury to send for witnesses, to issue process, and to punish for failure
to appear, and Tenn. Code Ann. § 40-12-104, which allows any person
having knowledge or proof of the commission of a public offense triable or
indictable in his county to testify before the grand jury upon proper
application, appear to be entirely consistent with the case law. No rule or
statute either expressly or impliedly allows a court to preclude persons from
testifying before a grand jury.
Id. (emphasis added). Setting aside the question of whether Mr. Willis is a “potential
defendant,” which is not at issue here, Mr. Willis again obfuscates mandatory language
(the court is without authority to prohibit individuals from testifying) with discretionary
language (the statute allows testimony). See id.
Mr. Willis also relies on a decision rendered by our Supreme Court that is cited in
the 1992 attorney general’s opinion, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d
274 (Tenn. 1980). In Watts, a police officer was suspended from duty when he
disregarded a written directive from the chief of police denying the officer’s request to
testify before a grand jury concerning a case that had been previously dismissed in court
due to a technical error. Id. at 279-80. Upon appeal to the applicable civil service board,
circuit court, this Court, and the Tennessee Supreme Court, the officer’s suspension was
upheld at each level. Id. at 276. The High Court explained:
We agree with the statement that no one may prevent a person from
appearing before a grand jury. Indeed, it is his duty to do so if he has
evidence of a crime. The District Attorney may ask for an indictment, or
the grand jury may act by presentment.
However, we are of the opinion that there is material and substantial
evidence that the act of the plaintiff’s appearance before the grand jury is
not the reason that the plaintiff was suspended indefinitely. We think that
there is material, substantial and convincing evidence that the real issue was
whether the plaintiff was subject to obedience to orders of his superiors.
What was demanded of the plaintiff was that he handle his investigation in
accordance with official channels, police policies and procedures and in
cooperation with the Detective Division.
14
Id. at 282-83. In referencing the language that “no one may prevent a person from
appearing before a grand jury” and that it is the person’s “duty to do so if he has evidence
of a crime,” the attorney general acknowledged that the language constituted dicta in the
context of Watts. Tenn. Atty. Gen. Op., 1992 WL 545029, at *1 (quoting Watts, 606
S.W.2d at 282-83). More importantly, the language is again mandatory in terms of the
lack of authority to prevent testimony but discretionary in terms of the potential
defendant’s or witness’s opportunity and civic duty to testify. Mr. Willis’s reliance on
Watts and on the attorney general’s 1992 opinion in support of his alleged mandatory
right to testify before a grand jury panel is unavailing.
Furthermore, nothing in the statute mandates that the Foreperson must travel to
meet with an incarcerated individual who claims to have knowledge or proof of a crime
or that the Foreperson must cause an incarcerated individual to be transported to appear
before the grand jury. A writ of mandamus is inappropriate in this case, first and
foremost, because Tennessee Code Annotated § 40-12-104 does not establish a clear and
specific duty on the part of the Foreperson to perform the task requested by Mr. Willis,
specifically to meet with Mr. Willis in prison or to cause Mr. Willis to be transported to
testify before a grand jury panel.
In addition, much of the manner in which the Foreperson, in collaboration with the
grand jury panel, is to determine whether the potential witness’s knowledge warrants
investigation by the grand jury is discretionary. See Tenn. Code Ann. § 40-12-104(b)-(c).
We note that Tennessee Rule of Criminal Procedure 6(j)(1) provides that “[t]he grand
jury shall send for witnesses whenever the grand jury or any member suspects that an
indictable offense has been committed” (emphasis added). Thus, the grand jury has the
authority to send for witnesses upon its own volition but is not required to transport an
inmate who claims to have information regarding a crime. See Tenn. R. Crim. P. 6(j)(1).
We do not find the task requested by Mr. Willis to be purely ministerial in nature. See
Grant, 2010 WL 844912, at *5 (“Mandamus is a summary remedy, extraordinary in its
nature, and to be applied only when a right has been clearly established, so that there
remains only a positive ministerial duty to be performed, and it will not lie when the
necessity or propriety of acting is a matter of discretion.” (quoting Peerless Constr. Co. v.
Bass, 14 S.W.2d 732, 733 (Tenn. 1932))). Moreover, we find no indication in the record
that the Foreperson acted arbitrarily or without regard to her duty such that the trial court
would have been warranted in substituting the court’s judgment for that of the Foreperson
by issuing a writ of mandamus. See Tusant, 56 S.W.3d at 18-19 (“A court will not
substitute its judgment for that of an official vested with discretion unless the official has
clearly acted arbitrarily and without regard to his duty in the exercise of that discretion.”).
15
Finally, even if Mr. Willis could assert a clear and specific right to testify and
present evidence before a grand jury panel, a writ of mandamus would not be a proper
remedy if granting the writ would manifestly prejudice public interest. See Grant, 2010
WL 844912, at *5 (“Where the court can see, upon a review of the whole case, that
public interests will be prejudiced and hindered, the writ will be denied.”). In Grant, a
state inmate filed a petition for a writ of mandamus, seeking to have the trial court
compel the county grand jury foreperson “to inquire into his allegations” against a law
enforcement officer investigating the crime that led to the petitioner’s arrest and
conviction. Id. at *3. In affirming the trial court’s denial of the petition, this Court first
determined that the petitioner had failed to establish a “specific and legal right” to the
writ of mandamus. Id. at *5. This Court explained:
At this time, [the petitioner’s] specific and legal right cannot be established.
A writ of mandamus is not warranted on this record. However, even if [the
petitioner] could assert a clear and specific right to submit evidence to a
grand jury panel, the trial court below properly denied issuing a writ of
mandamus because it would manifestly prejudice public interest. As noted
by the State in its brief, no doubt every defendant serving a sentence
because of a conviction or plea has deep resentment toward the law
enforcement officers who investigated their crimes. To require grand jury
forepersons to convene panels and transport convicted defendants to raise
any meritless allegations they please against law enforcement personnel
would expend scarce resources and would establish a costly precedent
clearly prejudicial to the public interest.
Id.
In response to the Foreperson’s partial reliance on Grant, Mr. Willis argues that
the facts of this action are distinguishable because he seeks to present testimony and other
evidence concerning a crime and investigation other than the crimes for which he has
been convicted. We determine this to be a distinction without a legal difference. As
explained above, Mr. Willis has failed to establish a specific and legal right to the relief
he requests. Moreover, upon our thorough review of the record and applicable
authorities, we determine that issuing a writ of mandamus in this case to an individual
with what the federal district court has described as the “unique circumstances” of being
a “convicted double murderer, imprisoned on death row in a state correctional facility,
who desires to give evidence, even perhaps to testify, before a grand jury investigating
another murder,” see Willis v. Crump, 2015 WL 8781215, at *4, would manifestly
prejudice public interest.
16
Throughout his pleadings before the trial court and his briefs on appeal, Mr. Willis
describes alleged facts that cross over from the murder of Mr. Thomas to the murders for
which Mr. Willis was convicted and to the law enforcement investigation of the crimes
for which Mr. Willis was convicted. For instance, in his July 2016 letter to the state
attorney general, Mr. Willis stated that he “discovered the same people responsible for
the murders [he] stand[s] convicted and sentenced to death for [a]re also responsible for
the unsolved murder of Mr. Samuel Johnson Thomas.” One need only review the
“Requested Relief” in the conclusion of Mr. Willis’s principal brief on appeal to note this
cross-over from Mr. Thomas’s murder into Mr. Willis’s convictions. Mr. Willis requests,
inter alia, that this Court make “a finding of facts that the State is holding Mr. Willis on
pretext of a conviction” and that “Mr. Willis is being held illegally.”2
We agree with the trial court and the Foreperson that to the extent that Mr. Willis
seeks to collaterally attack his own criminal convictions, allowing him to do so would be
manifestly against public interest. We also find this Court’s conclusion in Grant to be
applicable in that to the extent that Mr. Willis seeks to assert allegations against the law
enforcement personnel who investigated the crimes for which he was convicted, allowing
him to do so would “expend scarce resources and would establish a costly precedent
clearly prejudicial to the public interest.” See Grant, 2010 WL 844912, at *5.
Upon careful review, we determine that the trial court did not abuse its discretion
by denying Mr. Willis’s petition for writ of mandamus because Mr. Willis does not have
a clear and specific right to the remedy he seeks, nothing in the record indicates that the
Foreperson acted arbitrarily in the performance of her duty, and issuance of the writ
would manifestly prejudice public interest. We further determine, therefore, that the trial
court did not violate Mr. Willis’s constitutional rights to due process and state court
access.
2
On appeal, Mr. Willis has attached to his principal brief two volumes of appendices, containing multiple
documents that were not presented to the trial court as part of this action and many documents that appear
to be from the proceedings leading to Mr. Willis’s criminal convictions. Mr. Willis requests that this
Court take judicial notice of “facts contained in” these documents pursuant to Tennessee Rule of
Evidence 201. Inasmuch as the documents attached by Mr. Willis do not constitute the kinds of facts for
which this Court will take judicial notice, we decline to do so and determine that Mr. Willis’s appendices
cannot be considered on appeal. See Tenn. R. Evid. 201(b) (“A judicially noticed fact must be one not
subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.”); Tenn. R. App. P. 13(c) (providing that state appellate courts “may
consider those facts established by the evidence in the trial court and set forth in the record and any
additional facts that may be judicially noticed or are considered pursuant to Rule 14 [regarding post-
judgment facts].”). To the extent that Mr. Willis has requested that this Court take mandatory judicial
notice of law, pursuant to Tennessee Rule of Evidence 202(a), we note that such a request is unnecessary
because this Court considers all applicable law.
17
V. Remaining Issues
Mr. Willis has raised additional issues regarding (1) the trial court clerk and
master’s alleged violations of rules of civil procedure and Mr. Willis’s constitutional
rights, (2) the chancellor’s alleged violations of rules of judicial conduct and Mr. Willis’s
constitutional rights in the court’s supervisory role over the clerk and master, and (3) the
Foreperson’s and district attorney general’s alleged “actions of concealment” concerning
the investigation into Mr. Thomas’s murder and alleged violation of Mr. Willis’s
constitutional rights in their opposition to Mr. Willis’s requested grand jury testimony. In
addition, the Foreperson has raised an issue regarding whether Mr. Willis’s petition for a
writ of mandamus is barred by principles of res judicata and collateral estoppel in
consideration of the federal district court’s denial of injunctive relief in Willis v. Crump,
2015 WL 8781215, and the statements made by Mr. Willis in this case that appear to
collaterally attack his criminal convictions.3 Having determined that Mr. Willis was
unable to establish a specific and legal right to the writ of mandamus he requested and
that his constitutional rights were not violated by the trial court’s denial of the writ, we
conclude that these determinations are dispositive. The remaining issues raised on appeal
are therefore pretermitted as moot.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment denying Mr.
Willis’s petition for a writ of mandamus. This case is remanded to the trial court,
pursuant to applicable law, for collection of costs assessed below. The costs on appeal
are assessed against the appellant, Howard Hawk Willis.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
3
“The doctrine of res judicata or claim preclusion bars a second suit between the same parties or their
privies on the same claim with respect to all issues which were, or could have been, litigated in the former
suit.” Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). “Collateral estoppel is an issue-preclusion
doctrine developed by the courts” that “bar[s] ‘the same parties or their privies from relitigating in a later
proceeding legal or factual issues that were actually raised and necessarily determined in an earlier
proceeding.’” Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107 (Tenn. 2016) (quoting Mullins v. State,
294 S.W.3d 529, 534 (Tenn. 2009)) (additional internal citations omitted).
18