IN THE CRIMINAL COURT OF HAMILTON COUNTY STATE OF TENNESEE STATE OF TENNESSEE DOCKET NO. 315228 JASON CHEN DIVISION III MOTION TO VACATE INDICTMENT AND REMAND FOR PRELIMINARY HEARING ‘Comes now the Defendant, Jason Chen, by and through counsel, pursuant to the Sixth and Fourteenth Amendments of the United States Constitution, Article I, Section 9 of the Constitution of the State of Tennessee, State v. Waugh, 564 S.W.2d 654 (Tenn, 19878), and Rules 5, 5.1, and 17 of the Tennessee Rules of Criminal Procedure, moves this Honorable Court to vacate the above- captioned indictment and remand this matter to the General Sessions Court for a new preliminary hearing. In support, the Defendant shows as follows FACT: On November 30, 2022, Chattanooga Police Department (“CPD”) and other law enforcement officers arrested the Defendant at his parent's home in Nolensville, Tennessee for the criminal homicide of Jasmine Pace. On December 9, 2022, after remaining in custody for nine (9) days, the General ‘sions Court conducted a bond hearing. After a lengthy hearing, the General Sessions Court set the Defendant’s bond at five million dollars ($5,000.000.™), one of the highest bonds in Hamilton County history. The General Sessions Court set the preliminary hearing date for February 16, 2023On January 10, 2023, the Defendant served a subpoena duces tecum upon Sargent Bolton, an authorized person to accept service upon behalf of CPD. A copy of the subpoena is attached hereto as Defendant’s Exhibit A. On January 12, 2023, the State filed a motion to quash the Defendant's subpoena duces tecum. A copy of the motion is attached hereto as Defendant's Exhibit B. On January 17, 2023, the Defendant filed a response to the State’s motion to quash. A copy of the response is attached hereto as Defendant's Exhibit C. That same day, the State filed a reply to the Defendant's response. A copy of the reply is attached hereto as Defendant’s Exhibit D. The gravamen of the dispute between the parties was whether (1) the State had standing to assert a ‘motion to quash and (2) whether the Defendant's subpoena was an illegal use of a subpoena pursuant to Rule 17 of the Tennessee Rules of Criminal Procedure that invaded the purpose of Rule 16 (the rule of discovery). ‘Thereupon the General Sessions Court conducted a hearing on February 3, 2023, to address the issues raised by the parties. A copy of the transcript of said hearing is attached hereto as Defendant’s Exhibit E. The General Sessions Court, without addressing the issues raised by State or the Defendant, including whether the State had standing to file a motion to quash, stated, In {the Defendant's} documentation, I don't see anything that really would narrow it down so that we could make that determination, And for that reason, I ‘am going to quash this subpoena duces tecum as I feel it's vague and overly broad. And the reason — you know, there are other issues that we could get to, but that's the ruling of the Court. GS Mot. Hr’g Tr, p. 21:3 9, Instead of narrowing the materials requested by the Defendant, the General Sessions Court quashed the Defendant's subpoena in fota sua sponte. On February 7, 2023, the Defendant served five (5) new subpoenas duces tecum upon Sargent Bolton requesting five (5) different CPD officers’ respective bodycam videos narrowly- 2scoped with specific dates and times, as the General Sessions Court advised in the prior hearing. A collective copy of the subpoenas duces tecum are attached hereto as Defendant's Exhibit F1-FS. On February 9, 2023, the Hamilton County District Attomey Coty Wamp informally notified the General Sessions Court of the Defendant’s newly issued subpoenas and reiterated her prior objections to the original subpoena, A collective copy of the emails are attached hereto as Defendant's Exhibit G1-G7. On Friday, February 10, 2023, the City of Chattanooga filed a motion to quash the Defendant's newly issued subpoena duces tecum. A copy of the City’s motion is attached hereto as Defendant's Exhibit H. On Monday, February 13, 2023, undersigned counsel emailed the General Sessions Court regarding the subpoenas and stated, “[b]ecause of these issues and the lack of production of the subpoenaed material, the defense must unfortunately request a continuance of the preliminary hearing until the Honorable Court has an opportunity to review and decide these matters.” Defendant's Exhibit G2. Assistant District Attorney Michael Dowd immediately responded asserting that the State “vehemently” opposed a continuance of the preliminary hearing, Defendant's Exhibit G3. On February 13 and 14, 2023, the General Sessions Court advised the parties that the preliminary hearing would proceed as scheduled and any issues regarding subpoenas will be addressed at that time. See Defendant's Exhibits G4, G6, On February 15, 2023, the Defendant filed a formal motion requesting a continuance. A copy of the motion is attached hereto as Defendant’s Exhibit | On February 16, 2023, the General Sessions Court heard the arguments of counsel regarding the States and City of Chattanooga’s motions to quash. See Prelim, Hr'g, Tr., p. 13-40. A copy of the transcript of the preliminary hearing is attached hereto as Defendant's Exhi While it is unclear whether the General Sessions Court granted the State’s or the City’s motion to quash, the General Sessions Court ruled the Defendant’s subpoenas were improper because theitems requested were discoverable under Rule 16 and not subject to subpoena under Rule 17, Id. at 36:4-37:19 (the exact same issue the General Sessions Court refused to rule on at the February 3, 2023 motion hearing). However, the Defendant noted that he narrowed the dates and times of the requested materials as the General Sessions Court advised at the motion hearing on February 3, 2023. /d, at 38:9-39-3. After quashing the Defendant's subpoenas, the General Sessions Court then denied the Defendant's request for a continuance and proceeded with the preliminary hearing. Id, at 40:18-20. Investigator Zach Crawford was the only witness called to testify for the State. Id, at 45:13- 104:6. At one point, the State objected during eross-cxamination stating, “[e}toss-examination is supposed to be limited to crossing of what was directed by the State or by the party direct- examining a witness .. . If this is for probable cause determination, | would argue that we're completely outside the scope of direct examination, we're completely outside the scope of probable cause, and we're going to be here until midnight.” /d. at 137:24-138:11. The Defendant argued that he was entitled to a full and fair hearing in the General Sessions Court. /d. at 138:17-19. While the General Sessions Court agreed that the search of the Defendant’s apartment was essentially the basis of the probable cause, it ruled: There's still this standing issue of all the questions that you want answers to, It sounds like the person you want answers from is Catrina Pace, and Catrina Pace is not sitting here, and so if you want to continue to talk around that issue, we are wasting the Court's time, because you are well aware that this is not Catrina Pace and that he will not be able to answer questions about why Catrina Pace did or didn't do this or that. Those issues we will not be getting into. Id, at 139:10-19. The General Sessions Court prevented the Defendant from effectively cross- ‘examining the Investigator regarding evidence that was unlawfully seized that could have beensubject to a motion to suppress illegally obtained evidence. The General Sessions Court insinuated that the better witness to testify regarding the matter was Catrina Pace. However, when the Defendant attempted to call Catrina Pace, the mother of Jasmine Pace, her attorney, Ben McGowan, and the State objected to her being called as a witness. Id. at 153:1 After a discussion off the record, the General Session Court granted the State’s objection as to relevance and disallowed the Defendant to call Ms, Pace. Id. at 154:12-17. Ultimately, the General Sessions Court bound the matter over to the grand jury. Finally, on March 14, 2023, the Defendant was indicted by the Hamilton County Grand Jury in the above-captioned matter. ARGUMENT ‘The Defendant was denied a fair opportunity to investigate whether the evidence presented at the preliminary hearing had been illegally or unlawfully obtained. Any defendant arrested prior to an indictment or presentment is guaranteed a preliminary hearing. Tenn. R. Crim, P. Rule 5(f(1). A preliminary hearing is a critical stage in a criminal prosecution in Tennessee. MeKeldin v, State, 516 $.W.2d 82, 86 (Tenn. 1974); Moore v. State, 578 8.W.2d 78, 80 (Tenn. 1979); State y. Willoughby, 594 8.W.2d 388, 390 (Tenn, 1980). It is a proceeding where “certain rights may be sacrificed or lost.” /d. at 85 (citing Coleman v, Ala., 399 U.S. 1, 90 8. Ct. 1999, 26 L. Ed, 2d 387 (1970)). After conducting a thorough analysis of the history of the preliminary hearings and examinations within the State, the Tennessee Supreme Court “reaffirmed that the purpose of the preliminary hearing is to determine whether there is evidence sufficient to justify the continued detention of the defendant and subjecting him to the expense, embarrassment, humiliation, and inconvenience of a trial.” Waugh v. State, 564 $.W.2d 654, 659 (Tenn. 1978). The State is permitted to call witnesses that may prove probable cause. Jd. A defendant has a “right” to callwitnesses that are “in good faith . . . calculated to negate probable cause.” Id. A judge may only decline to hear proof of a defendant if “in his best judgment, is solely designed for discovery purposes, but may not abridge the right of the defendant to have a full, bona fide opportunity to refute probable cause.” Jd; see also Tenn. R. Crim, P. 5.1 advisory committee comment. The Defendant, in the case at bar, was denied his right to a full bona fide opportunity to exclude evidence that may have been illegally obtained. By quashing the Defendant’s subpoenas, the Defendant was severely limited and hampered in his investigation to determine whether the evidence presented at the preliminary hearing was illegally obtained. Further, the Defendant was denied the ability to cross-examine Investigator Crawford and call Catrina Pace to testify regarding the potentially illegally seized evidence. Motions to suppress illegally seized evidence are appropriate at preliminary hearings. State v. Golden, 941 S.W.2d 905, 907 (Tenn. Crim. App. 1996); State v. Boyd, No. W2003-02444-CCA- R9-CD, 2004 Tenn, Crim. App. LEXIS 255, at *6 (Tenn, Crim. App. Mar. 17, 2004). Because the Defendant was denied his right to a full bona fide opportunity to refute probable cause and exclude illegally seized evidence, he was essentially and equivalently denied a preliminary hearing. The only remedy, therefore, is to vacate the indictment and remand this matter for a new preliminary hearing in accordance with Rule 5(1)(4) of the Tennessee Rules of Criminal Procedure, which states: If an indictment or presentment is returned against a defendant who has not waived his or her right to a preliminary hearing, the circuit or criminal court shall dismiss the indictment or presentment on motion of the defendant filed not more than thirty days from the arraignment on the indictment or presentment. ‘The dismissal shall be without prejudice to a subsequent indictment or presentment and the case shall be remanded to the general sessions court for a preliminary hearing,‘Tenn. R. Crim, P, 5()(4). While this remedy may seem extreme, it should be clear that it does not dis the original arrest warrant — the case is not dismissed. See State v. Brooks, 880 8.W.2d 390, 394 (Tenn, Crim, App. 1993). It simply allows a defendant to an opportunity to have an adequate and legitimate preliminary hearing, Here, the General Sessions Court unfairly denied him his right to a full and fair hearing at this critical stage of a criminal prosecution. 1. THE GENERAL SESSIONS COURT ERRED QUASHING THE DEFENDANT'S ORIGINAL SUBPOENAS DUCES TECUM AND THE SUBSEQUENT SUBPOENAS DUCES TECUM. ‘The Defendant was severely and unfairly hampered by the General Sessions Court quashing his subpoenas duces tecum. The bodycam video requested by the Defendant could have aided in the determination of whether any evidence may have been illegally obtained. The Defendant did not seek any discovery pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure," A. RULE 16 VERSUS RULE 17 OF THE TENNESSEE RULES OF CRIMINAL PROCEDURE ‘The Defendant's original and subsequent subpoenas duces tecum were seeking materials pursuant to Rule 17 of the Tennessee Rules of Criminal Procedure. The State's reliance on Tennessean v. Metro Gov't of Nashwille, 485 8.W 3d 857, (Tenn, 2016) is misplaced. That matter does not analyze whether a criminal defendant can properly subpoena materials pursuant to Rule 17 as opposed to undergoing the discovery process described in Rule 16, but the gravamen of that issue is whether a non-criminal defendant may seek materials from law enforcement officers through the Public Records Act. Id. at 870-71. The State’s reliance on State v. Gage, No. 01C01- 9605-CC-00179 (Tenn. Crim. App. Jan. 26, 1999) (an unreported case that bears no authority) was "Phe Defendant has copied verbatim language from his response to the State’s Motion to Quash in General Sessions ‘Court, see Defendant’s Exhibit Calso inherently misleading. That case involved a criminal defendant seeking "work product" from an expert retained by the State where the materials requested were never discoverable under Rule 16. Here, the Defendant did not seek any materials that would be protected by attomey-client or attorney work-product privilege. The Defendant subpoenaed bodycam videos in onder to effectively cross-examine witnesses about whether the evidence being used to establish probable cause at the preliminary hearing was illegally or unlawfully obtained This exact issue was extensively litigated in Hamilton County only two years ago. A copy of Judge Stames’ Order Denying City of Chattanooga and Chattanooga Police Department's Motion to Quash Subpoena Duces Tecum and Ordering the Production of Limited Discovery Subpoenaed by the Defendant and a copy of Judge Greenholtz’s Order Denying Appeal and Denying Petition for Writ of Certiorari are included in Defendant’s Exhibit C. Both judges carefully and thoroughly examine Rules 16 and 17 of the Tennessee Rules of Criminal Procedure as they apply in a General Sessions Court, Judge Starnes found, despite the assertions of the City ‘of Chattanooga, “there is clearly no reference in TRCP 16 and TRCP 17 stating that one offset the other. To the contrary, both are mutually exclusive and ‘stand alone’ TRCP applicable to different courts.” Judge Stames Order, p. 5. A criminal defendant has every right to employ the use of subpoenas in the general sessions court -- even to law enforcement officers. See Judge Greenholtz Order, p. 10. ‘The burden is upon the movant of a motion to quash to “make a prima facie showing by acceptable evidence that the issuance of the subpoena was an abuse of the processes of the court because the witness is without information as to any material is tue in the case.” Stare v. Womack, 591 $.W.2d 437, 443 (Tenn. Ct, App. 1979). Further, “[a] trial judge has no discretion as to who he shall allow a defendant to subpoena. If a prospective witness is or probably will be a material 8one then a defendant has a constitutional right to have compulsory process. The matter turns on whether the issuance of process would in fact be an abuse of process, and, if the Court finds such is the case the Court has power to prevent such abuse.” Id. (citing Bacon v. State, 215 Tenn, 268, 273, 385 S.W.2d 107, 109 (1964)). Here, the General Sessions Court quashed the Defendant’s subpoenas without either the State or the City of Chattanooga demonstrating an abuse of process. Moreover, the General Sessions Court denied the Defendant's right to compulsory process, which is guaranteed by both the United States and Tennessee Constitutions, B. ‘THE SUBPOENAS WERE NOT UNREASONABL OR OPPRESSIVE, ‘The Defendant's original and subsequent subpoenas duces tecum are neither unreasonable nor oppressive. The District Attorney asserted that it is unreasonable and oppressive in and of itself for the CPD to produce the requested documents due to Rule 16, but it fails to elaborate any specific reason why the Defendant’s request is unreasonable and oppressive. Moreover, the Defendant does not seek any information that will not ultimately be produced. Judge Greenholtz articulates, "it is difficult to see how a subpoena could be unreasonable or oppressive if it seeks information that may ultimately be produced anyway." Judge Greenholtz Order, Footnote 37. C. THE STATE HAS NO STANDING TO CONTEST SUBPOENAS TO CPD While certainly the City of Chattanooga has standing (albeit legally incorrect in its position, see LA above), the District Attoney’s Office does not. The Office of the District Attorney does not have standing to contest the Defendant’s subpoena directed to CPD. The Tennessee Supreme Court holds, "[a] person has standing to challenge a subpoena issued to a third party, as long as that person asserts a personal right, privilege, or proprietary interest in the materials being sought by the subpoena." State v. Harrison, 270 S.W.3d 21, 29 (Tenn, 2008). The District Attomey hasneither a personal right, privilege, or proprietary interest in the evidence acquired by the CPD nor does the District Attomey assert such in its motion. Only CPD and/or the ty of Chattanooga has standing to contest the Defendant's subpoena, The General Sessions Court erred and abused its discretion by limiting the eros examination of Investigator Crawford and by denying the Defendant the right to call Catrina Pace as a witness, While a witness or testimony at a preliminary hearing can surely be excluded if their testimony is solely for discovery purposes, the General Sessions Court “may not abridge the right of the defendant to have a full, bona fide opportunity to refute probable cause.” Willoughby, 594 S.W.2d at 390. If the General Sessions Court had permitted Investigator Crawford to testify fully and Catrina Pace to testify, the Defendant could have questioned them regarding their initial search of the Defendant's apartment and whether there was any law enforcement involvement. A new preliminary hearing should be granted so that the Defendant may question Investigator Crawford and Ms. Pace WHEREFORE, PREMISES CONSIDERED, Defendant respectfully moves this Honorable Court vacate the indictment and to remand this matter for an immediate and valid preliminary hearing, 10Respectfully submitted, 1 Broad Street, Suite 428 tanooga, TN 37402 Phone: 423-265-8804 Fax: 423-267-5915 josh@cawplle.com CERTIFICATE OF SERVICE 1, the undersigned, hereby certify that a true and correct copy of the foregoing document has been duly served upon: Coty Wamp Hamilton County District Attorney’s Office 600 Market Street, Suite 310 Chattanooga, TN 37402 coty.wamp@hedatn.org, by placing a copy of same in the mailbox designated for the service of motions upon the District Attomey in the Hamilton County Criminal Court Clerk's Office. This 28" day of April, 2023 u