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Johnson v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 14, 2018

NIKOLAUS JOHNSON
v.
STATE OF TENNESSEE

          Session January 23, 2018

          Interlocutory Appeal from the Criminal Court for Sullivan County No. 107676 R. Jerry Beck, Judge

         In this interlocutory appeal, the petitioner, Nikolaus Johnson, appeals the ruling of the post-conviction court ordering that he provide discovery materials to the State. The rules governing post-conviction proceedings impose upon the State an automatic and mandatory obligation to provide discovery materials to the petitioner as part of the post-conviction proceeding even in the absence of a request for such materials. Although Rule 28 of the Rules of the Tennessee Supreme Court does not include a similar provision requiring automatic and mandatory reciprocal discovery from the petitioner to the State, the Post-Conviction Procedure Act provides that Tennessee Rule of Criminal Procedure 16 governs discovery in a post-conviction proceeding. Nothing in Rule 28 specifically exempts a post-conviction petitioner from complying with the discovery requirements of Rule 16. Accordingly, we reverse that part of the post-conviction court's ruling that held that the filing of a pro se petition for post-conviction relief, without more, triggers in the post-conviction petitioner a duty to provide reciprocal discovery to the State. Instead, we hold that a post-conviction petitioner's duty to provide reciprocal discovery to the State arises when the State has fully complied with its own mandatory discovery obligation and has requested reciprocal discovery under the terms of Rule 16. Because the State has not yet satisfied its duty to disclose in this post-conviction proceeding, the post-conviction court erred by ordering the petitioner to provide reciprocal discovery to the State. Regarding the post-conviction court's order that the petitioner disclose prior to the evidentiary hearing the underlying facts and data for those expert witnesses the petitioner intended to present at the evidentiary hearing, we conclude that Tennessee Rule of Evidence 705 authorizes the court's order and, therefore, affirm.

         Tenn. R. App. P. 9; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Remanded

          Daniel E. Kirsch, Deborah Y. Drew, and Andrew L. Harris, Office of the Post-Conviction Defender, for the appellant, Nikolaus Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and Kenneth F. Irvine, Jr., District Attorney General Pro Tem, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The procedural history of this case is protracted and complex. A Sullivan County Criminal Court jury convicted the petitioner of one count of the first degree premeditated murder of Bristol Police Department Officer Mark Vance, who had been dispatched to the home of the petitioner's girlfriend to answer a call that the petitioner was "at the house threatening her with a gun, " and sentenced him to death. State v. Johnson, 401 S.W.3d 1, 7 (Tenn. 2013). Our supreme court affirmed the petitioner's conviction as well as the sentence of death on direct appeal.

         On March 7, 2014, the pro se petitioner filed a petition for post-conviction relief that presented a variety of challenges to the petitioner's conviction and sentence of death. Four days later, the post-conviction court entered an order appointing the Office of the Post-Conviction Defender to represent the petitioner during the post-conviction proceeding. On March 27, 2014, the post-conviction court entered a preliminary order as required by Supreme Court Rule 28, see Tenn. Sup. Ct. R. 28, § 6, which order, among other things, directed the State "to provide discovery to [the] petitioner in accordance with Rule 16, Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds in the petition."

         On April 10, 2014, the trial court entered a "notice" that provided "an update of events in this post-conviction case." The notice indicated that the Sullivan County District Attorney General's Office had obtained copies of sealed exhibits from the petitioner's trial record by filing with the Sullivan County Circuit Court Clerk a request via Tennessee Code Annotated section 10-7-503.

         As a result of this revelation, on April 29, 2014, the petitioner moved the post-conviction court to grant "appropriate relief due to the unauthorized production of sealed records to the District Attorney General's Office." Specifically, the petitioner asked that the court direct the State to return all copies of the sealed exhibits to the court clerk, provide copies of the sealed exhibits previously provided to the State to the petitioner for review, reseal all exhibits and prohibit their release to the State or the public, and prohibit the State from relying on any information gleaned from its unauthorized access to the sealed exhibits. On that same date, the petitioner responded to the State's request to unseal certain previously-sealed exhibits. The petitioner's response indicates that the exhibits that the State sought to unseal contained expert reports and that the State's request to unseal the exhibits was premature.

         On May 15, 2014, the post-conviction court entered an agreed order providing that previously-sealed exhibits 83, 84, and 91 would be unsealed "for the limited purpose of allowing" the petitioner or his counsel to copy the exhibits and that the State had withdrawn its request to unseal the exhibits. The agreed order also indicated that the State had already obtained copies of a number of sealed exhibits and forwarded copies of these exhibits to the petitioner's counsel. The order indicated that the State had withdrawn its previous request to use the contents of the sealed exhibits and had agreed to return its copies of these exhibits to the court clerk.

         In his February 6, 2015 motion for an extension of time to file his amended petition for post-conviction relief, the petitioner indicated that post-conviction counsel's efforts to thoroughly investigate potential claims for relief had been seriously hampered by the Sullivan County District Attorney General's Office and the Tennessee Bureau of Investigation ("TBI"). Apparently, the Sullivan County District Attorney General had written to each of the jurors from the petitioner's case and told them that they should contact the district attorney's office before speaking with anyone who represented the petitioner. Additionally, TBI Agent Brian Pritchard telephoned certain jurors and told them that investigators for post-conviction counsel's office "were out harassing people" and that jurors did not have to speak with investigators. On April 1, 2015, the petitioner moved the post-conviction court to direct "jurors and alternates [to] avail themselves to post-conviction counsel for interviews." In his motion, the petitioner indicated that the District Attorney General admitted that he had contacted all 15 jurors by letter, which letter had suggested to jurors that they contact the district attorney's office before speaking to investigators for post-conviction counsel and that they had the right to have a representative from the district attorney's office present during any interview. The District Attorney General also acknowledged that he had directed Agent Pritchard to contact all the jurors to reiterate this message.

         The petitioner filed an amended petition for post-conviction relief on April 10, 2015. One week later, the petitioner moved the post-conviction court to disqualify the Sullivan County District Attorney General's Office from the case "due to an actual conflict of interest and the appearance of impropriety." As grounds, the petitioner cited that office's improperly obtaining copies of sealed trial exhibits that contained confidential, case-related communications and information without providing notice to the petitioner and that office's actions with regard to the petitioner's attempts to interview the jurors. The State responded that recusal was not warranted because the petitioner had failed to establish that he was prejudiced by the district attorney's review of the sealed exhibits or by the contact with the jurors.

         At the June 23, 2015 hearing on the disqualification motion, the post-conviction court noted that, although neither party had made a formal request for discovery materials pursuant to Tennessee Rule of Criminal Procedure 16, the preliminary order had directed the State to provide the petitioner with discovery materials as required by Tennessee Supreme Court Rule 28. The post-conviction court then stated, "But Rule 16 provides for reciprocal discovery. . . . In other words, I've ordered the State to turn it over, so that triggers reciprocal discovery from the [p]etitioner." The post-conviction court repeatedly indicated its belief that Rule 28 "required" the petitioner "to make reciprocal discovery [be]cause it's triggered by the [c]ourt putting down the order it put down." The court also suggested that those portions of Rule 16 that exempted from discovery attorney-client communications would not prohibit disclosure of the confidential, sealed documents that the State had already improperly obtained because the petitioner had raised a claim of ineffective assistance of counsel. The court theorized that although the State had improperly obtained the confidential, sealed documents, the fact that it would be entitled to them as part of reciprocal discovery from the petitioner "mitigated" any damage caused by the original method of disclosure.

         Former Sullivan County District Attorney General Greeley Wells, who had retired by the time the petitioner filed the post-conviction petition in this case but who had been appointed an assistant district attorney general pro tem to assist in the post-conviction proceeding, admitted that current Sullivan County District Attorney General Barry Staubus had filed a request pursuant to the public records act to view and copy the sealed documents in the trial record. He said that he had "since learned" that the State would have been entitled to the sealed documents as part of any reciprocal discovery materials the petitioner was required to provide under the terms of Rule 16. General Wells also indicated that the State had fully complied with its discovery obligation under Rule 28. General Wells expressed his belief that the entire trial record, including all sealed exhibits, was "fair game" under the public records act and that, as a result, neither he nor General Staubus had engaged in anything improper. He added that the petitioner had waived the confidentiality of the sealed exhibits that would have previously been protected by attorney-client privilege by raising a claim of ineffective assistance of counsel.

         At the conclusion of the hearing, the post-conviction court ordered the parties to hone their arguments via written motion and continued the proceeding. The court reconvened on September 29, 2015.

         At the September 29, 2015 proceeding, the post-conviction court indicated for the record that on June 13, 2013, the Office of the Post-Conviction Defender had requested "a copy of the Sullivan County District Attorney's complete file in the [p]etitioner's case pursuant to" Code section 10-7-503, and "[t]he district attorney's office complied with the request as required by law, with the exception of any work product." Then, in February 2014, General Staubus moved the Tennessee Supreme Court to withdraw the petitioner's trial record, and the supreme court returned the trial record to the Sullivan County Criminal Court "with an admonishment" that exhibits 83, 84, and 91 were to "remain sealed pending an order of the trial court to unseal them." The supreme court's order provided that the trial court could unseal the documents "[i]f issues raised in the post-conviction petition make it necessary and appropriate for the exhibits to be unsealed, or if counsel for the petitioner does not object to the exhibits being unsealed." General Staubus returned the sealed exhibits to the appellate court clerk on March 12, 2014. In the meantime, the petitioner filed a pro se petition for post-conviction relief on March 7, 2014.

         On March 28, General Staubus, by letter to the trial court clerk, made a public records act request for "any and all filings" in the petitioner's case; he did not provide any notice of his request to the petitioner or the trial/post-conviction court. The trial court clerk complied with the request. When the post-conviction court became aware of the actions of the Sullivan County District Attorney's Office, the court notified the petitioner and post-conviction counsel. The court observed that it was "significant . . . that the sealed records were opened after the post-conviction case was filed." After the post-conviction court notified post-conviction counsel of what had transpired, the petitioner moved the court to disqualify the Sullivan County District Attorney's Office from further participation in the post-conviction proceeding.

         The petitioner argued that the district attorney's obtaining the sealed exhibits via the public records act was not authorized by law, that that office "knew that the records were there; they knew that they were getting sealed records that they shouldn't have been reviewing." The State indicated that although it had viewed some sealed exhibits, it had not viewed those sealed exhibits specifically protected by the supreme court's order. The State expressed the belief that it would eventually be entitled to discover the documents that it had already viewed as part of the post-conviction proceeding. The State argued that it had done nothing improper.

         The post-conviction court again reiterated its opinion that the filing of a post-conviction petition triggers the State's obligation to provide discovery during the post-conviction proceeding and the petitioner's obligation to provide reciprocal discovery. The petitioner insisted that the filing of the post-conviction petition did not trigger such an obligation, arguing that Rule 16 "requires a trigger by the defendant or the [p]etitioner" and that the rules governing post-conviction proceedings placed no obligation on the petitioner to provide reciprocal discovery. In addition, the petitioner argued that "even if [the petitioner was] subject to reciprocal discovery, the documents that we were talking about here should not be disclosed as part of a discovery obligation unless they are documents that we intend to rely on during our post-conviction hearing." The court disagreed, saying, "I can trigger the turning over of information [by] the State [that] would seem to give a reciprocal duty by the [petitioner] to turn over information. . . . That's sort of the theory I'm going on, right or wrong." The petitioner emphasized that, even if reciprocal discovery was required, it would be limited by the terms of Rule 16 and would only encompass any evidence covered by the attorney-client privilege that fell within the limited waiver of that privilege triggered by the petitioner's precise claim of ineffective assistance of counsel and that the petitioner intended to rely on at the evidentiary hearing. The State argued that the petitioner had already made claims of ineffective assistance of counsel that rendered these items discoverable. Post-conviction counsel countered that counsel for the petitioner had "looked at every single document that we're talking about here . . . and showed how the discovery provisions show that these documents are not discoverable."

         With regard to the State's viewing sealed exhibits in the trial record, the post-conviction court indicated that the public records act did not authorize the State to view any sealed exhibit and that any unsealing of exhibits could be accomplished only by order of the court. General Wells admitted that although he did not know precisely what the sealed exhibits would contain, he "knew the general purpose of what was in them. The general purpose was to get examinations done of the [petitioner] by mental health." Nevertheless, he maintained that neither he nor General Staubus had done "anything that was outside the law, that was immoral, or that was in violation of the rules of professional responsibility." General Wells also clarified his earlier assertion that the State had complied with its discovery obligation under Rule 28, telling the court that the State had not provided any discovery materials to the petitioner since the filing of the post-conviction petition but that, "[p]rior to that time, we turned over the entire contents of our file, save for work product, to the [p]etitioner."

         Regarding the petitioner's request to disqualify not only General Wells and General Staubus but the entire Sullivan County District Attorney General's Office, General Staubus stated that only he and General Wells had reviewed the sealed exhibits but admitted "that the case has been discussed" with other individuals in the office "and all those people would be under his supervision."

         At the conclusion of the hearing, the post-conviction court took the issues under advisement. Via an October 29, 2015 order, the post-conviction court found "that the State was not entitled to make a request pursuant to the [Tennessee Public Records Act] after the filing of the petition for post-conviction relief in this matter" and that "even if a proper [public records act] request had been made, the State would not have been entitled to copies of sealed documents without first seeking the permission of this [c]ourt to unseal the documents." The post-conviction court concluded that although "all or part of the information contained in the sealed documents may become discoverable during the course of the hearings in this matter, " the State had "never filed a request for discovery in this matter or sought access to the sealed documents through an order of this [c]ourt." The post-conviction court ruled that although "the filing of the petition acted as a request for Rule 16 discovery in the post-conviction context, " "any judgment on the discoverability of the documents would be speculative at this time." Ultimately, the post-conviction court disqualified the entire Sullivan County District Attorney General's Office based upon Generals Wells' and Staubus' becoming "privy to confidential information which has created a conflict of interest on their part" and their admission "that if a conflict existed and disqualification was required it should be imputed to the entire office as there had been no effort to shield other members of the office from discussions about the case." Later, the post-conviction court appointed Knox County Assistant District Attorney General Kenneth Irvine as District Attorney General Pro Tem in this case.

         On June 21, 2016, the State moved the post-conviction court to unseal trial exhibits 83, 84, and 91, which, the State alleged, "dealt with mental health evaluations of the petitioner" and which had become relevant due to the petitioner's alleging "multiple failings by his trial attorneys as it relates to the development and use of mental health proof and their failure to override his decision not to present such mental health proof during the sentencing phase of his trial" and "error by the [c]ourt in its handling of the [petitioner's] decision to forego mental health proof at the sentencing phase." The State also filed a request for reciprocal discovery pursuant to Rule 16, for notice of any expert witnesses and reports prepared by those experts that the petitioner intended to present at the evidentiary hearing, and "pre-hearing disclosure of any facts or data underlying any expert opinions the petitioner may seek to offer." The petitioner opposed the State's request to unseal the exhibits, arguing that the exhibits were protected by the attorney-client privilege as well as the petitioner's constitutional rights to counsel and due process. The petitioner also argued that the exhibits were not discoverable unless and until the petitioner introduced them at the post-conviction hearing. The petitioner maintained that he was under no obligation to provide any of the material related to expert witnesses that the State had requested. Nevertheless, the petitioner agreed, "as a matter of comity, " "to provide the names and addresses of expert witnesses that the petitioner intends to call at the evidentiary hearing" and "copies of the reports prepared by these experts." The petitioner refused to disclose prior to the evidentiary hearing "any facts or data underlying any expert opinions." The petitioner also maintained that the rules governing post-conviction proceedings did not impose upon the petitioner a duty to provide reciprocal discovery to the State and that, even if they did, "the State's request exceeds the scope of a reciprocal discovery response."

         At the July 6, 2016 hearing on the various motions, the State argued that, pursuant to Tennessee Rule of Evidence 705, the post-conviction court had the discretion to require the petitioner to provide the facts or data underlying any expert opinions the petitioner intends to offer at the evidentiary hearing. The court concluded that under the terms of Rule 705, "the State would be entitled to . . . the underlying facts and data of . . . any expert to be relied upon" prior to the evidentiary hearing.

         The State argued that the post-conviction court should find that the petitioner had waived any claim to attorney-client privilege for exhibits 83, 84, and 91 by his specific allegations of ineffective assistance of counsel. The State asked the court to unseal the exhibits. The court agreed: "I think, if you're relying on those issues raised, then the State should be provided a reasonable opportunity to review the sealed exhibits and possibly to introduce them if the [p]etitioner does not - as it relates to what mental health information was available to counsel at the time of trial." The State reiterated that it was not asking for the sealed exhibits to be turned over by the petitioner but to be unsealed so that the State could simply obtain copies from the court clerk. The State argued that it would be entitled to use the documents to rebut the petitioner's claims because they are "the very best evidence of what was known at the time."

         As to the issue of the petitioner's reciprocal discovery obligation, the State argued that Code section 40-30-109 established a broad mandate that Rule 16 would be the sole vehicle for discovery in a post-conviction proceeding and that Rule 28 did not alter that. Instead, the State argued, Rule 28 simply reflected the supreme court's decision to mandate that the State provide discovery on the front end without a request from the petitioner as a means to "speed up the process" and should not be read to abrogate the petitioner's discovery obligation in a post-conviction proceeding. The State acknowledged that it had not provided any discovery materials during the post-conviction proceeding but that its reticence was attributable to the fact that "there was a public records act request where much more than was required under Rule 16 was turned over to the [p]etitioner, so they have those materials." The State argued that "[i]t makes no sense to say we have to turn them over again in order to keep our Rule 16 options available."

         The post-conviction court ordered the State to ensure that the petitioner had received everything via the public records act request that he was entitled to under Rule 28 and to disclose anything that might have been inadvertently excluded from the earlier disclosure. The court ordered the petitioner to comply with the State's request for reciprocal discovery related to its expert witnesses prior to the evidentiary hearing, observing that allowing the petitioner to wait until the date of the hearing to reveal the evidence would likely result in the expert's having to come to court twice, which the court characterized as a "waste of time . . . and expenses." The court ordered the petitioner to provide reciprocal discovery and a notice of the expert witnesses he intended to present by August 1, 2016, and to also notify the court by that date whether the State's request to unseal the exhibits had been rendered moot.

         In a July 22, 2016 written order, the post-conviction court granted the State's motion for notice of all expert witnesses and ordered the petitioner to provide the requested information by August 1, 2016, for those witnesses to be presented at the August 2016 hearing and by September 19, 2016, for those witnesses to be presented at the October 2016 hearing.[1] The court reserved ruling on the State's request to unseal exhibits 83, 84, and 91 pending notification from the petitioner whether "the requested information will be discovered by other means." ...


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