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State v. Graham

Court of Criminal Appeals of Tennessee, Jackson

June 28, 2017

STATE OF TENNESSEE
v.
ARTHUR GRAHAM and MICHELLE GRAHAM

         Session January 4, 2017

         Appeal from the Criminal Court for Shelby County No. 10-05643 Glenn Wright, Judge

          Lance R. Chism (on appeal) and Paul Springer (at hearing), Memphis, Tennessee, for the appellee, Arthur Graham. Jennifer J. Mitchell, Memphis, Tennessee, for the appellee, Michelle Graham.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Byron Winsett, III, Assistant District Attorney General, for the appellant, State of Tennessee.

         The Defendants, Arthur and Michelle Graham, were indicted on August 31, 2010, for theft of property valued at $60, 000 or more from the State of Tennessee based on their fraudulent medical billing practices at the children's therapy facility they owned and operated, which resulted in overpayments in excess of $200, 000. According to the indictment, the thefts occurred between March 6, 2002, and October 31, 2003. The delay in indicting the matter resulted from the fact that the United States Attorney's Office had first investigated the thefts and did not release the matter to the Shelby County District Attorney General's Office until the applicable federal statute of limitations had run. The Defendants each filed a motion to dismiss the indictment, claiming their rights to a speedy trial had been violated by the pre-indictment delay. The trial court denied the motions. Subsequently, the Defendants filed a joint motion to reopen proof on their earlier motions to dismiss. The court entered an order granting in part and denying in part the motion. While the court held that the Defendants had failed to present proof of actual prejudice between the last alleged criminal act and the return of the indictment, it found that the eight-year statute of limitations had run as to the thefts alleged to have occurred prior to August 31, 2002. As a result, the State could proceed only as to those thefts occurring between August 31, 2002, and October 31, 2003. The Defendants then filed a joint motion, asking that the court reconsider its earlier order, again asserting the pre-indictment delay violated their rights to a speedy trial. After hearing the testimony of witnesses, the trial court reversed its previous order, this time finding that the Defendants had been prejudiced by the pre-indictment delay, and dismissed the indictment. The State appeals this order. As we will explain, we reverse this order of the trial court and reinstate the indictment.

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

         Indictment Reinstated

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         In our review, we first will detail the motions made on behalf of the Defendants regarding the delay in the indictment.

         On June 15, 2012, the Defendants filed a joint motion to dismiss the indictment, claiming that the statute of limitations had run as to the offenses. On April 14, 2014, counsel for Defendant Arthur Graham filed an amended motion to dismiss the indictment, arguing that Mr. Graham had been denied his right to a speedy trial because of the passage of time between the offenses alleged in the indictment and the date of the indictment. Shortly thereafter, counsel for Defendant Michelle Graham filed a like motion. Both motions asserted that this passage of time affected the Defendants' abilities to defend themselves. The trial court took both motions under advisement. On July 24, 2014, the trial court heard arguments from the parties and advised that a ruling would be issued on August 21, 2014.

         On August 11, 2014, the Defendants filed a joint motion asking that the court allow them to reopen proof on the previous motions to dismiss. On August 15, 2014, the court heard testimony, as we will set out, from retired Tennessee Bureau of Investigation (TBI) Special Agent Roger Turner regarding the investigation of the matter and history of the delays. The State filed a response on October 7, 2014, opposing the motion. The court entered an order granting in part and denying in part the motion on November 12, 2014. In that order, the court denied the Defendants' claims regarding the violation of their Sixth Amendment and due process rights but granted the motion as to the statute of limitations, meaning that the State could not proceed on offenses alleged to have occurred prior to August 31, 2002.

         On March 26, 2015, the Defendants filed a joint motion, asking that the trial court reconsider its previous order. At a hearing on June 25, 2015, the trial court heard additional testimony from Defendant Arthur Graham and then, on July 30, 2015, from Alonzo Chad Pendleton, Tarlene Whooper, and Myla Johnson. On November 10, 2015, the trial court filed its order granting the Defendants' motion to dismiss the indictment.

         At the evidentiary hearing, which preceded the trial court's dismissal of the indictment, several witnesses testified. Roger Turner said that he was a retired special agent of the TBI and had been assigned to the Medicaid task force.[1] While in that position, he participated in a 2003 investigation of the Defendants' business, Cuddles Care Services, LLC. The criminal investigation resulted from a complaint filed by Blue Cross Blue Shield that Cuddles Care was improperly billing physician codes and had been paid more money than it was entitled to. The investigation began on August 13, 2003. According to his investigative summary, Mr. Turner received a letter on October 27, 2003, from Myla Johnson with Omnicare, stating that Omnicare had reached a contractual agreement with Cuddles Care to recover $15, 665.07 identified as overpayments due to fraudulent billing. Mr. Turner continued with his background investigation of the complaint, interviewed potential witnesses, investigated the business and, on September 21, 2004, served a ...


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