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State v. Jensen

Court of Criminal Appeals of Tennessee, Nashville

August 25, 2017


          Session Heard at Belmont University College of Law March 14, 2017 [1]

         Appeal from the Criminal Court for Putnam County No. 2015-CR-210 David A. Patterson, Judge

         Following the trial court's denial of an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State sought and was granted permission for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. In this appeal, the State argues that the trial court erroneously dismissed a burglary count in a superseding indictment against the Defendant, Danielle Chandria Jensen, who had previously been charged with theft of property valued at $500 or less, assault, and criminal trespass involving the same conduct. See T.C.A. §§ 39-13-101(a)(1), 39-14-103, -105(a)(1), -402(a)(3), -405 (Supp. 2014). We affirm the judgment of the trial court dismissing the burglary count.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Bret T. Gunn, Assistant District Attorney, for the Appellant, State of Tennessee.

          Craig P. Fickling, District Public Defender; and Benjamin D. Marsee, Assistant Public Defender, for the Defendant-Appellee, Danielle Chandria Jensen.

          Camille R. McMullen, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.



         On October 23, 2014, a police officer charged Jensen by affidavit of complaint with theft of property valued at $72.17, a Class A misdemeanor; assault, a Class A misdemeanor; and criminal trespass, a Class C misdemeanor, for conduct occurring at a Wal-Mart store in Cookeville, Tennessee. Although the charges originated in the Putnam County General Sessions Court, Jensen waived a preliminary hearing on these charges, and her case was bound over to the grand jury for consideration on March 11, 2015. The prosecutor assigned to the case subsequently moved for the Putnam County Criminal Court to enter an order of nolle prosequi as to the criminal trespass charge, explaining that it would be prosecuting Jensen only for the primary charges of theft and assault and would not be prosecuting her for the secondary charge of criminal trespass. An order of nolle prosequi on the criminal trespass charge was entered on April 28, 2015.

         On May 5, 2015, the Putnam County Grand Jury returned an indictment charging Jensen with one count of theft of property valued at $500 or less and one count of assault, which was consistent with the charges bound over from general sessions court and the order of nolle prosequi as to the criminal trespass charge. On October 6, 2015, the case proceeded to trial in the Putnam County Criminal Court. On the morning of trial, the prosecutor made a motion to delete from the theft count the specific items alleged to have been stolen, which the trial court granted. Following the presentation of the evidence at trial, the jury deliberated but was unable to reach a verdict on the charged offenses of theft and assault. The trial court declared a mistrial, and the case was placed on the trial court's docket for November 9, 2015.

         On November 2, 2015, less than one month after the mistrial and one week prior to the November 9, 2015 court date, the prosecutor sought and obtained a superseding indictment charging Jensen with three counts: burglary, theft of property valued at $500 or less, and assault. While the theft and assault counts of the superseding indictment were identical to the amended charges in the original indictment, the burglary count, which was a new charge, alleged that Jensen also committed the offense of burglary during the October 23, 2014 incident, which increased her highest charged offense from a Class A misdemeanor to a Class D felony.

         On May 3, 2016, Jensen filed a motion to dismiss the burglary count in the superseding indictment on the basis that this charge violated her due process rights under the Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Tennessee Constitution. In her motion, which alleged that the burglary charge was the result of prosecutorial vindictiveness, Jensen asserted that "[n]o facts on this issue have changed since the day [she] was first charged" and that no trial testimony "shed any additional light on these allegations that would have been previously unknown to the State." Jensen also argued that "on the face of the record, it appears that the State sought increased charges against [her] simply because she chose to exercise her right to trial and defeated the State's efforts to convict her, " which caused a presumption of prosecutorial vindictiveness to arise. She also asserted that because the State failed to show by clear and convincing evidence that "its decision to increase the level of charges against [her] was motivated by a legitimate purpose, " the burglary count must be dismissed.

         On May 11, 2016, the State filed a response to the motion to dismiss that included a detailed affidavit explaining the reason for the superseding indictment. In this response, the State asked the trial court to deny Jenson's motion because its affidavit rebutted any presumption of prosecutorial vindictiveness and because no actual vindictiveness existed. In the attached affidavit, the prosecutor assigned to Jensen's case made the following averments:

1. I prepared the initial indictment for presentation to the Grand Jury. I noted that there was a bound over criminal trespass charge along with the theft. Wal-[M]art did not provide a copy of any paperwork substantiating this charge, so I decided to dismiss the Class C misdemeanor and have the theft presented to the Grand Jury.
2. On September 22, 2015, the case was set for trial on short notice for October 6, 2015, only two weeks in the future.
3. In preparing for trial, I learned more about [Jensen's] prior involvement with Wal-Mart and was told by the prosecuting witness for Wal-Mart that [Jensen] had been banned from the store and there should be written proof of this in the older file at Wal-Mart. The witness no longer worked for Wal-Mart.
4. Knowing that I did not have time for a superseding indictment before the trial, I did not give any thought to that possibility.
5. If I had had more time, I likely would have explored the possibility of a superseding indictment further, including asking Wal-Mart to locate the form.
[6]. The trial was held on October 6, 2015, and resulted in a hung jury.
[7]. On October 12, 2015, I asked for and received a copy of the ban form. The emails from the Wal-Mart employee and a copy of the form are attached to this affidavit. I did not know prior to this time that the form used by Wal-Mart contained language that the ban was permanent until rescinded by Wal-Mart. Since the banning occurred more than 1 year prior to the offense date of October 23, 2014, the exact language of the ban form was important.
[8]. At this time I still had not decided to seek a superseding indictment charging burglary. I was aware that burglary was not normally used in retail shoplifting cases, although there had been some talk around the office about this possibility.
[9]. In mid-to-late October I attended the District Attorney's Conference in Chattanooga. While there I had occasion to have lunch with an Assistant District Attorney in Knoxville. That ADA told me that they had started charging shoplifters with burglary if they had previously been banned from the store. I have attached an article about this policy that was published on Nov[ember] 3, 2015, and another article published last month where a jury convicted a defendant of burglary on these facts in Knoxville.
[10]. Around this time frame I also had discussions with District Attorney General Dunaway about the general propriety of using the burglary statute in this context. He expressed his support of this approach for repeat shoplifters.
[11]. I also called the manager of the Wal-Mart involved and determined that the company does give individual store managers the power to institute a policy whereby persons are banned from the property for certain behaviors. He assured me that he would come to court and testify to that effect as needed.
[12]. Based on the totality of the circumstances and encouraged by the position of the Knox County District Attorney's Office and General Dunaway's position on the subject, I submitted the charge[] of burglary to the Grand Jury on November 2, 2015.
[13]. Subsequently, I have examined each shoplifting case closely to determine if the person has previously been banned, including making calls to the store if the situation is unclear. I intend to continue to charge this offense.
[14]. I have no personal animosity towards [Jensen]. The fact that she took this case to trial does not disturb me in the least. Although the result was not what I wanted, [Jensen] is certainly not to blame. She did not commit perjury at the trial or do anything that was improper. I enjoy trial work and certainly do not begrudge her desire to have another. If Ms. Jensen's trial had been postponed for some reason and no trial had been had on October 6, 2015, I would have proceeded exactly as I have.

         Pursuant to an agreement between the parties, the trial court was to base its ruling on the motion to dismiss only on the contents of Jensen's motion and the prosecutor's affidavit, with Jensen ...

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