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State v. Burgess

Court of Criminal Appeals of Tennessee, Knoxville

May 15, 2017

STATE OF TENNESSEE
v.
WILLIAM CHARLES BURGESS

          Session November 16, 2016

         Appeal from the Criminal Court for Knox County No. 103785 Bob R. McGee, Judge

         The Defendant, William Charles Burgess, was convicted by a Knox County Criminal Court jury of one count of preventing or obstructing an arrest and two counts of obstructing or preventing service of process, Class B misdemeanors. See T.C.A. § 39-16-602 (2014). The trial court sentenced the Defendant to six months, with all but ten days suspended to supervised probation. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. Because the Defendant's conduct did not constitute a criminal offense, we reverse the judgments of the trial court, vacate the Defendant's convictions, and dismiss the charges.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Convictions Vacated; Charges Dismissed

          A. Philip Lomonaco, Knoxville, Tennessee, for the appellant, William Charles Burgess.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Charme P. Allen, District Attorney General; and Amanda Cox and Nathaniel Ogle, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from an October 24, 2013 incident in which Knox County Sheriff's deputies conducted a warrantless entry into the Defendant's mother's home in order to arrest the Defendant for evading civil process related to a delinquent credit card account. The Defendant hid in a basement crawl space and refused to emerge, at which point deputies ordered a police dog to attack the Defendant and shocked him multiple times with a Taser.

         The trial testimony established that the Defendant was the owner of an optical lens business and worked part-time for his brother as a commercial landscaper. Both businesses were located at the Defendant's mother's house, and the Defendant had a workshop in his mother's basement.

         Knox County Sheriff's Deputy Chuck Bowers testified that he had worked for the sheriff's office in the civil warrants division for twenty-seven years, that he had previously served the Defendant with a civil warrant, and that he attempted to serve the Defendant in the present case. Deputy Bowers identified a civil warrant issued against the Defendant and said Discover Bank was the plaintiff. Deputy Bowers stated that in order to serve the Defendant, Deputy Bowers needed to hand him a copy of the warrant.

         Deputy Bowers testified that beginning in early September 2013, he attempted to serve the Defendant between twenty-two and twenty-four times. Deputy Bowers said that he went to the Defendant's house multiple times, that no one answered when he knocked, and that he left a business card. Deputy Bowers stated that on one occasion, he heard an unknown person moving in the house, that Deputy Bowers identified himself, that the person hid and did not open the door, and that Deputy Bowers left. Deputy Bowers said that on another occasion, he spoke with the Defendant's wife and that she was unwilling to accept service on the Defendant's behalf. Deputy Bowers said that he had to have the Defendant's permission to leave the civil warrant with someone at the Defendant's house. Deputy Bowers said that he could not obtain the Defendant's permission to leave the warrant with his wife.

         Deputy Bowers testified that he went to the Defendant's mother's house on multiple occasions and that he spoke to the Defendant's parents. Deputy Bowers said that on one occasion, the Defendant's mother told him that the Defendant had just left, that the Defendant's mother called the Defendant and asked him to return, and that he refused. Deputy Bowers stated that the Defendant told his mother to tell Deputy Bowers to get off the Defendant's property because he was trespassing.

         Deputy Bowers testified that generally, if he had difficulty serving a civil warrant because he could not find the person, he returned the warrant unserved after thirty and sixty days and that the plaintiff would have to re-file "for us to keep trying it." He said that the only circumstances in which he would serve the warrant by leaving it with a third party was if he spoke to the named defendant on the telephone and obtained permission to leave the warrant with a designated agent. He denied ever leaving a warrant in the screen door of a house. He said that in twenty-seven years, he had never had as much difficulty serving someone as he did the Defendant.

         Deputy Bowers testified that on September 18, he parked at the end of the Defendant's driveway, stood outside, and began walking up the driveway when he heard a truck's engine start. Deputy Bowers stated that the truck began coming down the driveway, that the truck came "right at [him], " and that when the truck came within arm's reach, Deputy Bowers drew his gun. Deputy Bowers said that he did not know if the truck was going to hit him and that when he drew his gun, the truck swerved into the yard, crossed the curb onto the road, and "fled the scene." He said that two people were in the truck, that he could not identify the Defendant as the driver, and that he did not take any legal action.

         Deputy Bowers identified a list documenting the twenty-four times he attempted to serve the Defendant. He also identified a photograph of the Defendant's lawn. The photograph showed tire tracks on a grassy space connecting a roadside curb and a wooded area. Deputy Bowers said that the line of a driveway was present in the photograph and identified where his vehicle had been parked, where he was standing, and where the truck began to swerve into the grass. He stated that the tire tracks came from "the vehicle that was coming at me."

         Deputy Bowers testified that after the incident with the truck, he was cautious in attempting to serve the Defendant and sometimes asked other deputies to accompany him. He stated that his subsequent attempts were unsuccessful. He said that when he could not contact a defendant, he returned "the process not to be found."

         Deputy Bowers testified that on October 24, 2013, he went to the Defendant's mother's house, that he parked at a restaurant beside the house, and that he thought he saw the Defendant walking across the driveway. Deputy Bowers said that he pulled into the driveway and that an employee of a business in the house told him the Defendant was inside. Deputy Bowers stated that he watched the house and that he requested backup. He said that Sergeant Jenkins arrived first and that other deputies joined them, including a K-9 deputy and his dog.

         Deputy Bowers testified that Sergeant Jenkins was his supervisor and that once she arrived, he "sat back" while Sergeant Jenkins spoke with the Defendant's mother. Deputy Bowers said that he entered the front door, went downstairs into the basement, and returned outside to search for the Defendant. Deputy Bowers denied opening drawers or searching in small spaces. He said that other deputies went inside the house. He said that he believed the Defendant had "evaded, " obstructed, and prevented service.

         On cross-examination, Deputy Bowers testified that he was persistent in his attempt to serve the Defendant and that generally, he did not have to try twenty times to serve someone. He denied being frustrated by the Defendant and said that he drove past the Defendant's house daily because it was on his way to work.

         Relative to the September 18 incident, Deputy Bowers testified that he began walking up the driveway before the truck appeared, that he saw two individuals in the truck, and that he told every deputy who accompanied him after the incident that the Defendant had attempted to run over him. Deputy Bowers denied that every deputy who responded on October 24 thought the Defendant had attempted to run over Deputy Bowers and that the September 18 incident was "general conversation" among the department. Deputy Bowers acknowledged that Sergeant Jenkins and his supervisors knew about the September 18 incident. He said relative to the September 18 incident that he "had a pretty good feeling" the Defendant was driving the truck and that on September 18, he was holding his radio and was dressed in uniform.

         Deputy Bowers testified that his uniform consisted of a t-shirt with the sheriff's office logo, a badge worn on his belt, a gun, and a radio. Deputy Bowers disagreed that the Defendant did not try to hit him with his truck. Relative to the Defendant's swerving the truck away from him, Deputy Bowers said that if someone drew a weapon at him, he would have swerved as well. Deputy Bowers agreed that he believed the Defendant was trying to avoid being served that day and that later in the day, he spoke to the Defendant's mother at the Defendant's workplace. Deputy Bowers said that he stood close enough to hear the Defendant tell his mother to tell Deputy Bowers to leave because he was trespassing. Deputy Bowers denied that the Defendant's mother told him the Defendant would return at 5:00 p.m. Deputy Bowers denied telling an employee at the Defendant's workplace that he had to use the restroom and walking away. Deputy Bowers denied telling another employee at the Defendant's workplace, "[Y]ou better tell [the Defendant] that he better let me serve him or I'm going to get him[.]" Deputy Bowers thought that he spoke to the Defendant's father on September 18 and denied that he spoke to the Defendant.

         Deputy Bowers testified that he requested backup on his radio or by calling his supervisor. He said that generally, when a deputy called for backup, everyone responded. Deputy Bowers believed he spoke to the Defendant's wife before the September 18 incident but was uncertain. Deputy Bowers did not know what Tennessee Civil Procedure Rule 4 stated about methods of service. Deputy Bowers agreed that the Defendant's wife was a person of suitable age and discretion with whom he could have left the civil warrant. After reviewing Rule 4, he acknowledged that the rule did not require a third party to consent to service on behalf of a named defendant. He agreed that he could have dropped the warrant at the Defendant's wife's feet and told her to give it to the Defendant but said that he had been taught to "cover my rear end" and only to leave the warrant with a defendant, unless he had the defendant's consent. When asked whether the Defendant had to be "avoiding" process, as opposed to "evading" process, in order to serve the Defendant's wife in the Defendant's stead, Deputy Bowers responded, "[T]hat's the way I understand it[.]" Deputy Bowers said that he did not feel comfortable leaving the warrant with the Defendant's wife.

         A copy of Tennessee Code Annotated section 16-15-604 was received as an exhibit. Subsection (a) read,

Original process shall be served on individuals by delivering a copy of the warrant personally . . . or if he evades or attempts to evade service . . ., by leaving a copy thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein[.]

         Deputy Bowers testified that the Defendant merited arrest on October 24 when he "[r]olled himself up in plastic [and] hid in a crawl space" and told his mother that he would not come to the door. Deputy Bowers denied that the Defendant put nails in the driveway, shot at him, or prevented him from approaching the house. Relative to the September 18 incident, Deputy Bowers stated that he told a few deputies that the Defendant drove away from him.

         Defense counsel played a portion of an October 24 police cruiser video recording.[1]In the recording, Deputy Bowers said "[he] did go that way." Deputy Bowers denied obtaining an arrest warrant for evading. He believed that the Defendant was preventing service of process and said that he did not know if he could have obtained a warrant for the Defendant's arrest based upon his preventing service of process. Deputy Bowers stated that at the time he entered the Defendant's mother's house, he thought a warrant for the Defendant's arrest had been signed by an on-call judge.

         Deputy Bowers identified a copy of the Defendant's arrest warrant and agreed the charge listed was "preventing or obstructing service of process." He acknowledged that the narrative section of the warrant stated deputies had requested permission to enter the house, the Defendant's mother told them the Defendant was hiding, and the deputies searched most of the house using a police dog. Deputy Bowers said that he was "not usually involved with arrest warrants" and that he did not know how the warrant was obtained. Deputy Bowers stated that when a crime was being committed in a deputy's presence, the deputy did not always have to obtain a warrant. He said that Sergeant Jenkins and Captain Norris had a conversation about "taking extra steps" to ensure they had a warrant and that Deputy Bowers was not part of the conversation.

         On redirect examination, Deputy Bowers testified that if he served someone other than the named defendant, the person he served might claim he or she never received the papers. He said that he did everything he could do to avoid involving the Defendant's parents. He stated that he did not have permission to serve the Defendant's mother and that even if she had wanted to accept service on his behalf, "I'm not going to do that. I don't care what the statute says, I'm covering my rear end." Deputy Bowers denied that frustration influenced his attempts to serve the Defendant.

         On recross-examination, Deputy Bowers testified that he "followed statutes, but I followed the one I chose to choose" and that he chose not to follow the statute permitting him to serve the Defendant's wife. Deputy Bowers did not know whether the

         Defendant's mother volunteered to accept service on October 24. He said that Deputy Thompson eventually served the Defendant and that seven or eight deputies responded to the Defendant's mother's house.

         Knox County Sheriff's Captain Wesley Norris testified that he was Deputy Bowers's supervisor and that he discussed with Deputy Bowers the difficulty of serving the Defendant. Captain Norris said that on October 24, he was concerned about the numerous times Deputy Bowers had tried to serve the Defendant and about "some safety concerns[.]" Captain Norris stated that on October 24, he spoke to Sergeant Jenkins, who was the supervisor on the scene, as well as Mike Ruble, legal counsel to the Sheriff's Office. Captain Norris said that his conversation with Mr. Ruble concerned "evasion of process, any alternative means, which had pretty much been exhausted at that point." Captain Norris stated that he made the decision to charge the Defendant with "evading service of process" because it was "obvious" that the Defendant would "go to any length to avoid being served." When asked whether the Defendant obstructed service of process, Captain Norris stated that the Defendant obstructed service by "making himself unavailable, putting other people in positions . . . [to] say he's not here or either say, he's not coming out, basically, things along those ways. Putting other people in the position to obstruct the process." When asked whether the Defendant prevented service of process, Captain Norris stated that the Defendant prevented service by refusing to accept it.

         Captain Norris testified that the deputies at the scene did not have an arrest warrant and that an arrest warrant was not required when a misdemeanor occurred in a deputy's presence. When asked which misdemeanor the Defendant committed in the deputies' presence, Captain Norris responded, "Evading process." He said that the Defendant resisted arrest, although he did not see it.

         Captain Norris testified that a federal lawsuit was pending as a result of the October 24 incident. He identified a copy of the federal complaint and said that it bothered him. Captain Norris read the substance of the complaint to the jury. Captain Norris stated that several parts of the federal complaint were incorrect. Captain Norris said that the federal complaint requested a $50, 000 judgment for the Defendant's mother and $250, 000 for the Defendant.

         Captain Norris testified that the Defendant's mother said she did not want the deputies to enter her home but that no force was used. Captain Norris said he asked the Defendant questions while they stood at the back of a police cruiser. Captain Norris did not recall seeing Deputy Thompson serve the Defendant, although he was confident Deputy Thompson did. He identified Deputy Thompson's signature on the civil warrant's return. Captain Norris noted that service could have involved "informing" the Defendant because the Defendant was handcuffed and could not hold the warrant. Captain Norris agreed that service required handing a person the warrant, although he later said that service did not require handing it to a person, but rather making the person "personally aware of the service . . . face-to-face, hand-to-hand." He stated,

Naturally, the occurrence, if I'm there to serve a paper, is to hand it, after you have been told why I'm here to serve this, whatever it is. Naturally, I'm going to hand that to you, as a copy. Is it required? I don't think it is required. You don't have to take it. I can simply drop it at your feet and walk away.

         Captain Norris agreed that after Deputy Bowers determined the Defendant was "evading" process, Deputy Bowers could have dropped the warrant at the Defendant's wife's feet. He said, though, that Deputy Bowers's contact with the Defendant's wife occurred at a point in time in which the sheriff's office did not yet know whether the Defendant was evading process.

         Captain Norris testified that he instructed Sergeant Jenkins to arrest the Defendant if she believed she had probable cause. He denied that Mr. Ruble told him he had probable cause to arrest the Defendant or enter the house. He denied telling Sergeant Jenkins that she had probable cause to enter the house and said that the deputy at the scene made probable cause determinations. He said that without probable cause to arrest, a deputy could not enter a house. When asked whether hiding from service of civil process gave a deputy probable cause to arrest, Captain Norris responded, "Hiding once, probably not. Hiding 24 times, maybe . . . . it's, I guess, a totality of everything that's occurred up to that point. That's where you arrive at the evading." When asked whether evading was an element of the offense, Captain Norris responded, "It's obstruction, prevention, evading. They pretty much all say the same thing to me." Captain Norris said that he thought evading was the same as obstructing or preventing and that he would have to read the statute to know whether the statute included the word "evading."

         On redirect examination, Captain Norris testified that the Defendant was served at the police cruiser by telling the Defendant the contents of the civil warrant. He said that the warrant was placed in the Defendant's belongings to be transported to the jail because the Defendant was handcuffed. Captain Norris stated that if a named defendant refused to take the warrant, the serving deputy could drop it in front of the defendant. He said, though, that the deputy could not drop it if the deputy were serving another person in the named defendant's stead.

         On recross-examination, Captain Norris testified that the Defendant's wife did not have to accept the civil warrant and that service of process consisted of informing the individual of the charges, not simply leaving the warrant. Captain Norris said that handing a person the warrant "doesn't necessarily complete that process" and that the warrant was a copy of the information and "your corroboration of what I just told you." Relative to leaving the warrant with the Defendant's wife, Captain Norris responded that if a third party were reluctant to take the paper, he would not leave the paper with the third party "because I have a duty otherwise to not do it." He said that he did not know when Deputy Bowers first spoke with the Defendant's wife.

         Knox County Sheriff's Sergeant Deborah Jenkins testified that she had worked in the civil warrants division for twenty years and that she was Deputy Bowers's supervisor. Sergeant Jenkins said that Deputy Bowers occasionally asked her to accompany him when trying to serve the Defendant because he had not been able to reach him several times. She stated that on one occasion, she went with Deputy Bowers to the Defendant's house and that no one answered the door. She stated that she accompanied Deputy Bowers to the Defendant's workplace once or twice before October 24, and that she spoke to the Defendant's parents. Sergeant Jenkins said that she told the Defendant's mother she needed to serve the Defendant with civil process and that she felt uncomfortable leaving the papers with his mother because his mother was "very nervous" and the location was not the Defendant's home address. Sergeant Jenkins ...


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