Court of Criminal Appeals of Tennessee, Knoxville
Session March 24, 2015.
Appeal from the Criminal Court for Bradley County No. 14CR158A Jon Kerry Blackwood, Judge
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Stephen D. Crump, District Attorney General; and Richard Fisher, District Attorney General Pro Tempore, for the appellant, State of Tennessee.
Charles Leland Davis, Chattanooga, Tennessee, for the appellee, Twanna Blair.
John Everett Williams, J., delivered the opinion of the Court, in which Norma McGee Ogle and Robert L. Holloway, Jr., JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE.
FACTS AND PROCEDURAL HISTORY
This case arose from a February 14, 1999 shooting at the residence of O.J. Blair and the defendant. The shooting left Mr. Blair and two other victims, Dawn Rogers and Cayci Higgins, dead and the defendant with a gunshot wound to her back. This incident set in motion what the trial court aptly described as a "tortuous procedural history." Several years elapsed before the State brought the first of what would be many indictments against the defendant and her co-defendants.
On January 17, 2007, the grand jury charged the defendant in indictment No. M-07-003 with three counts of conspiracy to commit first degree murder and one count of aggravated perjury. On May 21, 2008, the State agreed to nolle prosequi the three counts of conspiracy to commit first degree murder. On March 26, 2008, the State indicted the defendant in indictment No. M-08-125. Indictment No. M-08-125 charged the defendant with conspiracy to commit first degree murder and conspiracy to commit aggravated robbery. The trial court later granted the defendant's motion to dismiss the conspiracy to commit aggravated robbery charge in No. M-08-125 on the grounds that the statute of limitations had expired. After the nolle prosequi and dismissal, one count of aggravated perjury remained from indictment No. M-07-003, and one count of conspiracy to commit first degree murder remained from indictment No. M-08-125.
On October 8, 2008, the grand jury returned a third indictment, indictment No. M-08-455, charging the defendant and her co-defendants with conspiracy to commit especially aggravated robbery, especially aggravated robbery, and three counts of felony murder. For the felony murder charges, the indictment alleged that especially aggravated robbery was the underlying felony. The State filed notice of its intent to seek the death penalty for the defendant. The trial court consolidated the counts in indictment No. M-08-125 and No. M-08-455 for one trial. After the consolidation, the defendant was awaiting trial on one count of conspiracy to commit first degree murder from indictment No. M-08-125 and the five counts from indictment No. M-08-455. The aggravated perjury charge from indictment No. M-07-003 was not included in the consolidated indictment.
The defendant's case, which had been severed from those of her co-defendants, was scheduled for trial in September of 2009. Prior to trial, the defendant moved to dismiss the conspiracy to commit especially aggravated robbery charge. Although there is not an order of dismissal in the record, the charge was dismissed prior to trial. On the Friday before the trial, the trial court asked the State on which charges it wished to proceed to trial. The State responded that it would inform the court of its decision on the day of the trial. The record does not contain an order reflecting the State's selection of the indictments that it wished to prosecute. However, the transcript of the trial reflects that the State proceeded to trial only on the counts from indictment No. M-08-455 charging the defendant with especially aggravated robbery and three counts of felony murder. The State did not proceed to trial on the count of conspiracy to commit first degree murder from indictment No. M-08-125.
At the conclusion of the State's proof, the defendant moved for a judgment of acquittal. The trial court denied this motion. The defendant renewed the motion at the conclusion of the defense's proof, and the trial court reserved a ruling on the motion. After deliberating, the jury was deadlocked on the four indicted offenses. The trial court revisited the defendant's motion for judgment of acquittal and granted the motion in regards to the especially aggravated robbery charge. The trial court next granted the motion with respect to the three felony murder charges and further granted the motion as to the lesser included offenses of second degree murder. The trial court declined to grant a motion of acquittal for the lesser included offenses of facilitation of felony murder, and the court declared a mistrial due to jury deadlock for those charges.
The defendant filed a motion to reconsider the judgment of acquittal for the charges of facilitation of felony murder on the grounds that her acquittal of especially aggravated robbery precluded a retrial on the charges of facilitation of felony murder. The State also filed a motion to reconsider the judgment granting acquittals on the charges of felony murder, second degree murder, and especially aggravated robbery. The trial court denied both motions but granted the defendant permission to file an interlocutory appeal, which this court granted.
While the defendant's interlocutory appeal was pending, the State filed a motion to recuse the trial judge. The motion was granted, and the Honorable Judge Blackwood was later appointed as the presiding judge for the case.
Prior to oral arguments for the interlocutory appeal, the State moved to nolle prosequi all charges in indictment No. M-08-455, and this court remanded the case for the entry of an order dismissing the charges. On remand, the State filed the motion to nolle prosequi the defendant's charges in indictment No. M-08-455. The motion alleged that the chief investigator in the case had been terminated and that instances were discovered that called into question the investigator's credibility. The motion further alleged that there was improper contact between the investigator and the former presiding judge. The State contended that due to this improper contact, due process mandated the dismissal of the indictment. The State requested that the indictments be dismissed without prejudice in the event that new evidence developed that would warrant further prosecution. The trial court granted both motions to dismiss the indictments without prejudice. After the motion was granted, the defendant filed a motion to voluntarily dismiss her interlocutory appeal, which this court granted.
On March 19, 2014, the defendant and Michael Younger were indicted for a fourth time, in indictment No. 14-CR-158. The defendant was charged with:
Count One: Conspiracy to Commit First Degree Murder of O.J. Blair
Count Two: Conspiracy to Commit First Degree Murder of O.J. Blair
Count Three: Conspiracy to Commit Especially Aggravated ...