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State v. Brooks

Court of Criminal Appeals of Tennessee, Jackson

February 27, 2017


          Session July 12, 2016

         Appeal from the Criminal Court for Shelby County No. I1500012 Paula L. Skahan, Judge

         The Defendant, Henri Brooks, entered a guilty plea to a charge of making a false entry on an election document, a Class D felony. The Defendant, who was completing a term as a County Commissioner for Shelby County at the time of the offense, listed an incorrect address on a document related to her bid for the position of Shelby County Juvenile Court Clerk. The trial court held a sentencing hearing during which the primary contested issue was the Defendant's request for judicial diversion. The trial court ultimately denied diversion and instead sentenced the Defendant to two years of probation. On appeal, the Defendant argues that the trial court abused its discretion in denying diversion because it failed to weigh the factors it was required to consider in denying diversion, because it relied on improper evidence in making the decision, and because the denial was in part based on the Defendant's exercise of her First Amendment rights. After a thorough review of the record, we conclude that the trial court improperly relied on evidence outside the record in reaching its decision. Accordingly, we reverse the denial of diversion, and we remand for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded

          André C. Wharton and Michael Ryan Working, Memphis, Tennessee, for the appellant, Henri Brooks.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Garry Brown, District Attorney General, pro tem; and Jason Scott and Mark C. Hazlewood, Assistant District Attorneys General, pro tem, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.




         The evidence in the record shows that the Defendant has a long history of public service in Memphis and that she is primarily known for fighting for justice for the poor, particularly within the African American community. After holding elected office and otherwise working within the State and County governments, the Defendant was elected to the position of County Commissioner in 2006, reelected in 2010, and continued to hold that office through 2014. In 2010, the Defendant's daughter sustained a serious injury, and the Defendant began to stay with her daughter's family to help care for her daughter and grandchildren. Beginning in 2010 and continuing through 2014, the Defendant filed several campaign finance documents and one petition to run for Juvenile Court Clerk, all of which listed an address belonging to the Defendant's friend as her residence. She ultimately entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to one count of making a false entry on an election document.

         The Defendant presented numerous character witnesses, all prominent members of the community, who testified about the lasting value of her work in public service and who detailed her many achievements. The Defendant takes issue with two events which also became a focus of the hearing: a dismissed assault case against the Defendant, in which she allegedly threw water on a woman, and an argument during a County Commission meeting, in which she made certain statements to a Hispanic man regarding diversity in contracts. The Defendant challenges the trial court's weighing of the factors relevant to judicial diversion. She contends that the trial court improperly considered evidence outside of the record in the assault case and regarding the County Commission meeting. She argues that her actions in the Commission meeting were protected political speech and that the trial court violated her First Amendment rights in considering them. Because we conclude that the trial judge erred in relying, among other things, on the trial judge's personal recollection of television news accounts of the assault case and County Commission meeting, we reverse and remand for a new sentencing hearing.

         Sentencing Hearing

         At the sentencing hearing, the prosecutor pointed the trial court to a Statement of Undisputed Facts which the State had filed. The defense did not dispute that it had stipulated to the facts in the document. According to the Statement of Undisputed Facts, the Defendant first began to list the address in question as her home address in 2010, and she twice voted listing it as her home address. The Defendant also listed the address on eight campaign finance disclosure statements while she was County Commissioner, and these documents were filed on October 26, 2010; July 25, 2012; July 8, 2013; July 15, 2013; December 9, 2013; December 31, 2013; April 15, 2014; and May 19, 2014. On February 18, 2014, the Defendant listed the address as her home address on a petition to run for Shelby County Juvenile Court Clerk, and this filing is the basis for the conviction at issue in this appeal.

         The Statement of Undisputed Facts recites that the Defendant never had an ownership interest and never had utilities in her name at the address she listed on the petition for the County Clerk position. The defense stipulated that the owner of the home, Robert Robin Brown, would testify that the Defendant did not reside at the address. Mr. Brown, in an interview with agents from the Tennessee Bureau of Investigation ("TBI"), stated that he had managed two of the Defendant's campaigns in the years prior to his wife's death in 2010. After the death of his wife, he and the Defendant had a "close friendship / relationship." According to Mr. Brown, the Defendant then lost her house due to financial troubles and asked him to use his address to receive mail. Mr. Brown's statement to the TBI was that "[s]he used it as an address of record, but she never lived here." According to Mr. Brown, the longest the Defendant stayed was overnight, and their relationship only lasted "a couple of weeks." Mr. Brown stated that he would inform the Defendant when he received mail addressed to her, and if she did not retrieve it, he would forward it to the County Commission. While the defense did not stipulate to the truth of Mr. Brown's assertions, it stipulated that he would testify consistently with this statement to the TBI. According to filings in the technical record made by the State and by the Defendant, Mr. Brown's address was within the Defendant's district as a Commissioner, while the address of her daughter, where she was staying, was not. Both addresses were within Shelby County, as required for the Juvenile Court Clerk position.

         The Defendant called numerous witnesses to testify to her character and contributions to the community. The exhibits in the appellate record from the hearing also include letters attesting to the Defendant's character.

         Mr. Michael Kernell served as a State Legislator with the Defendant, and they shared a suite and worked on a committee together in the Legislature. Mr. Kernell testified that the Defendant was industrious and more involved than many other Legislators. She helped to create some government oversight of employment practices under Title VI of the Civil Rights Act. Mr. Kernell testified that the Defendant was not a danger to the community, that she had good physical health, that she had no improper dealings as a Legislator, and that he had never known her to use drugs.

         Mr. Willie Marshall Parks had known the Defendant since she was a teenager, and the two worked together for eleven years in the juvenile court system. The Defendant, who worked with neglected and dependent children, had a good work ethic and was always passionate. Mr. Parks testified that "[e]verybody loved Commissioner Brooks." The Defendant also worked outside her district because "she had a love" for it. She had not had any problems with alcohol, drugs, or her mental health while she worked for the juvenile court system. According to Mr. Parks, she had had an impact on the community and had always been compassionate. While many of the witnesses made only oblique references to the Defendant's impact on the juvenile justice system, an exhibit to the record recounts that she filed a complaint with the Department of Justice ("DOJ") regarding disparate treatment of juveniles based on race in Shelby County and that the DOJ conducted an investigation and found constitutional violations within the juvenile court system, leading to reform.

         Pastor L. LaSimba Gray, Jr., had known the Defendant since the 1980s, and he testified that she was always "committed and dedicated to a cause." Pastor Gray testified that she fought the "battle" in juvenile court "almost by herself." The Defendant was known for community advocacy and "always working on behalf of a cause." Pastor Gray testified that her legal troubles had "traumatized" her and that her case was in his opinion ideal for diversion, since justice would not be served by her incarceration or probation. Pastor Gray summarized that "one moment of collapse or failure cannot erase all the good she's done in this State and for the good of people."

         Judge Joseph B. Brown, Jr., best known for conducting an arbitration show on television called The Judge Joe Brown Show, testified that he had also been a prosecutor, public defender, in private practice, part of the capital defense team, and ultimately, an elected judge in criminal court in Shelby County. Judge Brown had known the Defendant since the 1970s and found that she was "unflaggingly dedicated to improving a lot of people in this County, irrespective of ethnicity, race, or gender." Judge Brown testified the Defendant was an "unsung hero, " who had focused on "wrongs that need to be corrected." The Defendant had worked for juveniles and was a conscientious mother. He had never observed her to have mental health issues. Judge Brown testified that she was "selfless" and "dedicated, " observing that "[s]he could have made a lot of money in the world but she chose to spend the time helping people out."

         Judge Brown testified obliquely regarding some threats the Defendant had faced. Judge Brown stated that the Defendant had faced personal danger as a result of her public service, including threats which the TBI found credible during her time in the Legislature. A stalker required her to move from her home downtown, and the stalking continued to the present. Judge Brown testified, "And she discussed with me what some might have taken as paranoia about this last individual or individuals finding where she had gone to, and that resulted in gun[]fire and damage to the premises she had been occupying shortly before the last incident…." The incident with gunfire was not further explained in the record. He testified that the Defendant was under stress due to these incidents and was worried that she would endanger her family.

         Commissioner Walter Bailey testified that he had served on the County Commission for forty-three years and had known the Defendant for thirty years. The Defendant was a public servant with "an enormous amount of passion and commitment, " courage, and intelligence. She was an advocate for the poor and defenseless. Commissioner Bailey testified that her conviction was "a great tragedy." The Defendant was experiencing a great deal of stress as a result, but was mentally "quite balanced." He testified that the Commission discussed the contours of the residency requirement in the wake of the charges against the Defendant but did not discuss abolishing residency.

         Mr. Randy Wade, who worked in the Sheriffs Department for twenty years and then as district director for a United States Congressman, had known the Defendant since around 1980. In the 1980s, the Defendant assisted Mr. Wade with a program to warn children to stay away from strangers. The Defendant acted as a liaison by setting up meetings, and she did this on a strictly volunteer basis. When the Defendant chose to leave her position in the State Legislature to run for local office, the community felt "jubilation because we knew as a people that we would have a voice." Mr. Wade stated that her legal situation "weighed heavily" on her. The Defendant was a "champion of poor people, the downtrodden, " and Mr. Wade had encouraged her to fight her legal troubles rather than give up.

         Pastor Leonard Dawson had been a pastor at Memphis Cane Creek Baptist Church for thirty-three years and had known the Defendant approximately ten years. The Defendant had "single handedly" instigated the reform of the juvenile justice system, and she always worked for the constituents in her district, where his church was located. Pastor Dawson stated that the Defendant "has repeatedly been willing to put herself at peril in order to do the things that would advance her people, " and noted that by "her people, " he meant those who are disadvantaged. The Defendant had carried herself professionally in the face of a stressful situation which included problems with her daughter's health.

         The Defendant introduced two police reports from May 2010 related to her troubles with a stalker. The reports reflect that, when the Defendant went to sit on her porch at night, the lights of another apartment turned off and then a bright light was focused on her and followed her movements. This occurred on two occasions. On a separate occasion, she saw a man watching her from the same apartment.

         During the hearing, defense counsel alluded to "some very private problems" which the Defendant had experienced and which he was not sure she would share. It is not clear if these problems were ever shared with the court.[1]

         The Defendant addressed the court, acknowledging the "seriousness of the situation that brings me before the Court." However, she noted that the Commission has, since the charges, struggled and failed to define the residency requirement. She stated that she was entering a plea to allow the court to turn its attention to matters of public safety. The Defendant explained her change in address by stating that her daughter had become totally incapacitated as the result of an injury, that her daughter's recovery was longer than expected, and that she chose to take care of her daughter and grandchildren during this time, while still serving the constituents of her district. The Defendant stated, "I really struggle tremendously with the idea that I am a criminal for serving my family's needs." She elaborated, "I struggle with the fact that my crime is one of staying with my family in the wrong part of the County while I was serving the people of the entire County." She noted that she received no monetary benefit from the crime, acknowledging that her pension may have been endangered by her conviction but stating that her pension "never crossed my mind." She stated she wanted to continue to work for the community as a private citizen.

         After the Defendant's allocution, the trial court noted that it was obliged to consider the Defendant's criminal record and noted that the presentence report did not contain an account of the Defendant's arrest for assault. The prosecutor gave an account of the alleged assault, which took place prior to the investigation into the false statements on the election documents. The prosecutor recited that on June 10, 2014, the Defendant allegedly threw water on Lisa Nichols, the victim, after an argument in a parking lot. The assault charge was ultimately dismissed as part of the plea agreement in this case.

         The trial court then noted the importance of the Defendant's work in the community and that "getting the Justice Department to come down here and do what they needed to do was just outstanding." The court stated, however, that it was difficult to overlook the assault "allegedly, you know, throwing water from a water bottle on someone and saying what do you think you're white, you know. Whatever it was, you know, at somebody it's just bizarre." This was the first reference in the record to the Defendant's words to the victim in the assault case.

         Defense counsel then noted that the victim of the assault had "some issues apparently, " and he introduced two police reports filed by the victim to show that the victim may have been at fault in the incident. In one, the victim alleged that a man had chased her around a dollar store and sprayed her with a spray bottle of bleach and that this act was related to some online harassment. In another police report, the victim reported a theft at her house on two separate occasions. Defense counsel noted that the Defendant had been harassed for her political activities and that the harassment affected her actions when the victim came up to her in a parking lot and spat on her. The court responded, "I thought there was a disinterested bystander taking photos." When defense counsel stated that there was a video showing a security guard asking the victim to back away, the court stated, "That's not what I remember." Defense counsel objected to the trial judge's reliance on her memory of the video as hearsay.

         The prosecutor then gave further detail on the incident, stating that the victim's version of events was that she was trying to back into a parking spot and that the Defendant took the spot as she was backing up. The victim "ended up hitting a tree." The prosecutor then acknowledged that the victim approached the Defendant but stated that the Defendant was "irate" and told the victim "you think you can do that just because you're white, or something along those line[s]." The Defendant then allegedly threw water on the victim.

         The defense decided to introduce the Defendant's testimony regarding the incident. The Defendant stated that her car was already parked when she noticed the victim. The victim's car backed into an area next to the Defendant's, and the victim went back and forth with her car, hitting a small tree three separate times. The Defendant at first thought the victim was backing into a parking space, but then she realized that the area next to her was not designated for parking. The Defendant's dashboard camera recorded the event. While there was some discussion regarding formatting this recording to make it an exhibit, defense counsel ultimately chose not to do so. Several photographs, showing the victim's car several feet past the curb and apparently against a small tree, were introduced. The Defendant testified that the victim then approached her, shouting, asked if she was a judge, and spat on her. The Defendant splashed the victim with water to make her leave.

         In response, the State introduced the statement of a witness, Erma Perry, who told police that she saw "the white lady being forced onto the curb." Ms. Perry stated that the victim confronted the Defendant, who was leaving her vehicle. The witness stated that the Defendant then threw water on the victim and said, "you just acting that way cause you're white." The victim then claimed to be a "child of God" and called the Defendant the devil. The Defendant attempted to leave but was blocked by a gray car. Defense counsel objected that the assault charge had not been subject to discovery and that he had not had an opportunity to interview the witness or to cross-examine her.

         The trial court interjected, "Again, if I recall correctly from last summer the video showed water being thrown." Defense counsel stated that he did not recall that on a video and objected, citing the rule against hearsay. The Defendant then again addressed the court, elaborating that the victim had contacted an acquaintance who used a vehicle to block the Defendant in.

         The trial court stated, "I think Ms. Brooks has some mental issues, I really do. I mean you're saying - stalking her daughter. She certainly doesn't admit to any - I mean, she went off in that meeting to the Hispanic guy. This incident in the parking lot is not typical. It usually takes two to have a fight like that. I'm just saying I think she's got some issues." At this point in the ...

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