IN THE CRIMINAL COURT OF HAMILTON COUNTY, TENNESSE ) STATE OF TENNESSE ) ) SION II v. ) ) No. 315228 . JASON CHEN, ) Defendant, ) ) ) STATE'S RESPONSE TO DEFENDANT'S MOTION TO VACATE INDICTMENT AND REMAND FOR PRELIMINARY HEARING Comes now, the State of Tennessee, to respond to Defendant Jason Chen's Motion to ‘Vacate the Indictment and Remand for Preliminary Hearing (henceforth “Motion” or “Defendant’s Motion”) and to request that this Court deny Defendant’s Motion on both grounds. 1. THE GENERAL SESSIONS CouRT CoRRECTLY LIMITED DEFENDANT'S CROSS- EXAMINATION OF ZACH CRAWFORD AND CORRECTLY DENIED DEFENDANI"S REQUEST TO CALL CATRINA PACE The General Sessions Court correctly limited the cross examination of Detective Crawford and denied Defendant’s request to call Catrina Pace during the preliminary hearing because that evidence was irrelevant to the issue of probable cause and Defendant has no right to inary hearing, enter irrelevant evidence in a prel A. Applicable Law ‘The General Sessions Courts of Tennessee are empowered to conduct preliminary hearings to find whether there is probable cause in a given case. See Tenn. R. Crim. Pro. 5.1 These proceedings are meant to be a “safeguard for the Defendant, protecting him from. “screening function” for cases. State v. Willoughby, 594 S,W.2d 388, 390 (Tenn. 1980). During this preliminary hearing, the Defendant is entitled to unfounded charges” as well as providingcross examine witnesses and to introduce evidence relevant to probable cause. Tenn. R. Crim. Pro. 5.1(@)(2). Ifa defendant has not waived their right to a preliminary hearing but an indictment has been entered, the indictment is to be dismissed and remanded for a preliminary hearing under Tenn. R. Crim. Pro. 5(f)(4). This ruled only applies in the very narrow set of circumstances provided within the rule and does not allow for dismissal of the indictment and remand when a preliminary hearing has occurred. During a preliminary hearing, the presiding magistrate may at any time decide that there is suffici it proof to establish probable cause so long as: 1) probable cause has been established by the evidence presented; 2) the Defendant has been given a chance to cross examine all witnesses; and 3) the Defendant has been given the chance to present proof to rebut probable cause. Tenn. R. Crim. Pro. 5.1, advisory commission notes. Just because a Defendant has a right to present evidence to rebut probable cause does not mean that a Defendant has a right to call all of the State’s witnesses to question them. Id, The magistrate retains control of the proceeding at all times and determines the scope of the proceedings. Id. Atal times, the purpose of the preliminary hearing is to determine probable cause and not to provide the Defendant with an opportunity to discover the State’s case. Id, Discovery is an important byproduct of the preliminary hearing mechanism, not its goal. State v. Howard, 2008 Tenn. Crim. App. LEXIS 302, *59, B. Cross Examination of Zach Crawford During the cross examination of investigator Zach Crawford, the magistrate over the preliminary hearing in the instant case allowed Defendant to inquire as to the presence of Catrina Pace at the crime scene, but only insofar as Detective Crawford had knowledge of her presence. Some of these questions were answered by Crawford, but eventually Defendant began inquiringinto issues to which the Detective did not have any knowledge. Crawford indicated that he did not know the answers to Defendant's questions due to the timing of his involvement in the investigation. Defendant was not allowed to inquire further as the issues were outside the knowledge of the witness, and thus would be violative of Tenn. R. Evid. 602. C. Catrina Pace Catrina Pace, the mother of the victim in the instant case, was not a witness at the preliminary hearing. As noted by the Court in its refusal to allow Defendant to call Catrina Pace, she was not subpoenaed and was irrelevant to the issue of probable cause. In addition, the attomey representing Catrina Pace, Ben McGowan, had made the parties aware that should Cairina Pace be put on stand, she would not answer any questions and would elect to assert her right against self-incrimination. As such, she offered nothing to the proceeding, and it was determined by the Court that she was not to be called. Because Catrina Pace had not been subpoenaed, was irrelevant to the issue of probable cause, and would not have provided any information even if she had information to offer, the trial court did not abuse its discretion in refusing to allow Defendant to call her as a witness. D. Defendant is not Entitled 10 Relief on this Issue Defendant suggests that both the court's limitation of the cross examination of Crawford and the refusal of the Court to allow Catrina Pace to take the stand constitutes an abuse of discretion. However, Defendant has cited no case to support that the facts here amount to such ‘an abuse, instead choosing to rely on a vague reassertion of the Willoughby standard of a Defendant's right to “have a full, Bona fide opportunity to refute probable cause.” Willoughby, 594 $,W.2d at 390. Like with the subpoenas, Defendant is on a fishing expedition and is‘attempting to utilize the preliminary hearing proceedings as a discovery vessel rather than going through the normal discovery process established by Tenn. R. Crim. Pro. 16. II. THE GENERAL SESSIONS COURT CORRECTLY QUASHED DEFENDANT’S SUBPOENAS A. The State's Standing ‘The State of Tennessee has standing to bring this Motion to Quash, and there is no authority to the contrary. In fact, defense counsel was asked multiple times by the General Sessions Court Judge what authority he had in his possession to support his argument for lack of standing. Defense counsel was not able to produce authority. Though difficult to define the boundaries of the State’s duty to preserve evidence subject to discovery and inspection under Tenn. R. Crim. P. 16 and other applicable law, the United States Supreme Court held that whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. Califomia v. Trombetta, 467 U.S. 479, 488-89 (1984), ‘The cases of State v. Ferguson, 2 8.W.3d 912 (Tenn. 1999) and State v. Crass, 660 'S.W.3d 506 (Tenn. Crim. App. 2022) discuss the State’s responsibilities to preserve evidence in depth. Due to their role in the creation and maintain of evidence, it is unquestionable that a law enforcement agency is a member of the prosecution team. A law enforcement agency who investigates and presents a case for prosecution is acting as a State actor and as a member of the prosecution team. This is recognized even in case law as wide reaching as the Brady doctrine. Brady v. Maryland, 373 U.S. 83 (1963). It is certainly without question that the prosecution has. standing to contest any subpoena that is directed towards a member of the prosecution team that impacts the ability of the prosecution team to present their case. In addition, previous cases, including the single case that Defendant relies on to contest the Distri Attomey’s standing,have stated that there are certainly areas and times where the prosecution has standing to contest subpoenas issues. See State v. Harrison, 270 §.W.3d 21 (Tenn. 2008) and United States v. Raineri, 670 F.2d 702 (1982 7th Cir.). Therefore, the State has standing to contest any matter being directed to a member of the prosecution team as a part of a criminal prosecution. B. Previous Rulings in State v. Ervin The Defense may rely on the previous non-controlling rulings in the Hamilton County case of State v. Jesse Ervin, General Sessions Division 5 Docket No.: 1805174, Criminal Court Second Division Docket No.: 310378. The State asserts that the previous considerations are only controlling on the parties in the Ervin matter. Regarding issues analyzed by the Criminal Court of Appeals, the Tennessee Supreme Court stated, “We have previously noted that ‘unpublished intermediate court opinions have persuasive force.’ See Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 886 n.2 (Tenn. 1991). While not controlling authority, unpublished decisions of this Court are entitled to at least the same respect.” MeConnell v. State, 12 $.W.3d 795, 799 n.5 (Tenn. 2000). The previous orders do not carry the weight of an appellate opinion, nor are they authority on which this Honorable Court should rely. At best, they are a reference. C. Prohibition Against Seeking Discovery in Sessions Court Rule 16 governs discovery in Criminal Court. Its significant to note that, pursuant to Rule 16, the Defendant, through counsel, has been provided with most of the evidence that is currently in the State’s possession. In State v. Willoughby, the Tennessee Supreme Court clearly states: “Rule 16, Tenn. R. Crim. P., does not apply in General Sessions Court. .. Rule 1 shows on its face that the Rules are applicable to General Sessions Court only to the extent enumerated and that the ‘enumerated instances of applicability embrace only those proceedings peculiar to the practice inGeneral Sessions Court. Rule 16 is not such an area of practice.” State v. Willoughby, 594 S.W.2d 388, 390-91 (Tenn. 1980). Allowing the Defendant's subpoena duces tecum to stand allows the Defendant to circumvent Rule 16 and subverts the rules of discovery. The Tennessee Rules of Criminal Procedure govern courts of record. Tenn. R. Crim. P. cord. (a) provides that General Sessions Court is not a court of at 391, Rule 1(b) outlines select rules that specifically govern General Sessions Court, While Rule 17 is listed, Rule 16 is not. “Rule 1 shows on its face that the Rules are applicable to General Sessions Court only to the extent enumerated and that the enumerated instances of applicability embrace only those proceedings peculiar to the practice in the General Sessions Court. Rule 16 is not such an area of practice.” Id. at 390-91. In Willoughby, the Defendant filed an extraordinary appeal, claiming she was entitled to discovery at her preliminary hearing. Id. at 389. On appeal the court held that Rule 16 was not applicable to preliminary hearings, and the Tennessee Supreme Court agreed stating, Rule 16, Tenn. R. Crim. P., does not apply in General Sessions Court. It is true that, Rule 1(c) [now Rule 1(b)] defines the scope of the rules in such manner as to include ‘preliminary examinations pursuant to Rule 5.1°. Rule 5.1 governs preliminary hearings. Its inclusion within the scope of the criminal rules was necessitated by this fact, and this fact alone. Its inclusion does not operate to make any other rule applicable to such hearings. Broadly speaking, these rules are intended to ‘govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee.” (Emphasis supplied) Rule 1, Tenn.R.Crim.P. The General Sessions Court is not a court of record. Rule | shows on its face that the Rules are applicable to General Sessions Court only to the extent enumerated and that the enumerated instances of applicability embrace only those proceedings peculiar to the practice in the General Sessions Court. Rule 16 is not such an area of practice. Id, at 390-91. “To our knowledge no court has ever held that a preliminary hearing is a discovery device.” Id, at 390 (citing McKeldin v. State, 516 8.W.2d 82 (Tenn.1974)). “Some of these items, particularly the confessions and admissions against interest, most likely will come to light at thepreliminary hearing. Under Rule 16, Tenn. R. Crim. P., the defendant is entitled to demand each and every item requested as soon as the indictment is found.” Id. at 392 (emphasis added). Willoughby was decided in 1980 and has been cited for forty-three years to defend this well- established principle of Tennessee law. In contrast, there is no authority in support of the Defendant's position. In State v. Chapman the defendant appealed the trial court's denial of a motion to dismiss the indictment based on the State’s concealment of an exculpatory statement prior to the preliminary hearing. State v. Chapman, 2005 Tenn. Crim. App. LEXIS 1158, *10-11 (Tenn. Crom. App. November 2, 2005). After the hearing, but prior to trial, the State tumed over a statement. Id, at *12, The defendant requested a new preliminary hearing and argued he could have used the exculpatory statement to refute the State’s presentation of probable cause. Id. at *12-13. The Court ruled there was no error and cited Willoughby and Rule 16 stating, “As such, the appellant was not entitled to receive Hunter's statement prior to the preliminary hearing or the convening of the grand jury.” Id, at *15. A preliminary hearing is not intended to be a discovery device, nor do the at *14-15, rules of discovery apply in General Sessions Court The Tennessee Court of Criminal Appeals often holds that if a rule of criminal procedure is not enumerated within Rule 1, then it is not applicable in General Sessions Court. For example, State v. McNerney cited and followed Willoughby in its ruling; “Tenn.R.Crim.P. 37(b)(2)(v) not one of the enumerated rules applicable to the General Sessions Court as set forth in ‘Tenn.R.Crim,. 1.” State v. McNerney, 1994 Tenn. Crim. App LEXIS 683, *5 (Tenn. Crim. App. October 17, 1994). The Court of Criminal Appeals does the same in State v. Williams. State v. Williams, 2010 Tenn, im. App. LEXIS 1081, "6-7 (Tenn. Crim. App. December 22, 2010). D. Differentiating 7“A criminal defendant's right to compulsory process is not absolute.” State v. Hester, 324 '8.W.3d 1, 94 (Tenn. 2010) (quoting State v. Tate, 2007 Tenn. Crim. App. LEXIS 167 at *35 (Tenn. Crim. App. February 23, 2007), superseded on other grounds. Rule 17 provides that when a 1ess is subpoenaed to testify or provide documents, “a trial court may quash or modify the subpoena ‘if compliance would be unreasonable or oppressive.”” State v. Gibson, 2012 Tenn. Crim. App. LEXIS 873 at *15 (Tenn. Crim. App. October 26, 2012) Compliance with the Defendant’s subpoena duces tecum would be contrary to law and therefore inherently unreasonable. The Tennessee Supreme Court has made clear that from before trial through post-conviction proceedings, Rule 16 exclusively governs discovery between the State and a defendant and is therefore the sole means of obtaining discovery materials from the State in criminal cases. Tennessean v. Metro-Gov't of hhville, 485 8.W.3d 857, 869-70 (Tenn. 2016) (citing Swift v. Campbell, 159 S.W.3d 565, 757-76 Tenn. Crim. App. 2004); Appman v. Worthington, 746 S.W.2d 165, 167 (Tenn. 1987)). The Court reasoned that Rule 16’s scope controls, because if it did not, then “a defendant would have no reason to seck discovery under Rule 16, but would file a public records request and obtain the entire police investigative file, which would include more information than the defendant could obtain under Rule 16.” Id. at 871. In sum, discovery is available from the State only through the provisions of Rule 16, not separately from the varied arms of the State. See State v. Hicks, 618 S.W.2d 510, 514 (Tenn. Crim. App. 1981). ‘The Court of Criminal Appeals firmly held that Rule 17(c) cannot be used in a manner to circumvent discovery rules: .. . Rule 17(¢) cannot be used to obtain materials which are not discoverable under Rule 16(a)(2). Certainly, the limits of Rule 16(a)(2) would be meaningless if a defendant could simply subpoena the protected materials under Rule 17(c). Indeed, under the Federal Rules of Criminal Procedure, "[a] defendant may not obtainthrough Rule 17(c) documents which are protected from disclosure pursuant to Rule 16(a)(2)." United States v. Orena, 883 F. Supp. 849, 867 (E.D.N.Y. 1995). Our Rules 16(a)(2) and 17(¢) are substantially identical to their federal counterparts. Thus, we see no reason why the result under our state rules should be any different, ‘The trial court did not abuse its discretion when it granted the motion to quash the subpoena. State v. Gage, 1999 Tenn. Crim. App. LEXIS 62, "25. This conclusion makes sense because discovery information in the custody and control of the State must be disclosed pursuant to Rule 16. Rule 17 addresses a separate need, the acquisition of material that is not in the custody or control of the State, such as bank, business, or medical records. These types of records are not at issue because the Chattanooga Police Department is an agent of the State. Anything in possession of the CPD must necessarily be produced through the discovery process covered by Rule 16 through the District Attomey. Requiring discovery separately and outside the process provided for ive to the CPD. by Rule 16 is unreasonable and oppi E. Undue Burden Extending Rule 16 to the General Sessions Court would te an undue burden on the Court and law enforcement agencies. The Willoughby court also took this into consideration in its conclusion: “Moreover, it creates an undue burden on a court, not of record, which is not equipped to handle the tedious and technical process of discovery.” Willoughby, 594 S,W.2d at 392. General Sessions Courts are not equipped to handle the mandates of Rule 17 if it were to be applied to discoverable material within law enforcement’s control. It is significant to note that in the case at hand the Defendant has been indicted for First Degree Murder. Discovery is voluminous, to say the least, For this reason, using Rule 17 as a discovery mechanism would be unreasonable and oppressive‘The documents and objects to be produced under Rule 17 must be delivered to the Court. ‘The Court in tum determines how the documents and objects are to be disseminated. Per Rule 17(4)(1), “(t]he court may direct that the designated items be produced in court before trial or before they are to be offered in evidence. When the i sms arrive, the court may permit the parties and their attomeys to inspect all or part of them.” “The issue and method of service of a subpoena is by T.C.A. §23-2-105 and Tennessee Ci jinal Procedure Rule 17. The subpoena was retumable to the court and the material obtained through the use of the subpoena should also have been returned to the court to be inspected and used under the court's direction.” State v. Schaff, 727 S.W.2d 255, *6 (Tenn. Crim. App. 1987). F. Argument and Conclusion Allowing a Defendant to circumvent the rules regarding discovery allows the Defendant to access more materials than they may receive under Rule 16. The Defendant will lose no right or interest, as they are entitled to, and have received, discovery in Criminal Court. Also, reviewing State-controlled evidence during probable cause hearings is overly burdensome, and permitting abuse of Rule 17 would effectively choke General Sessions Court, ‘The State acknowledges that discovery is a by-product of preliminary hearings under Tenn. R. Crim, Pro, 5.1. The Advisory Commission Comment specifically addresses this concer: The purpose, scope, and quality of evidence to be admitted upon a preliminary hearing have likewise been the subjects of intense debate. Despite the language in MeKeldin v, State, 516 S.W.24 82 (Tenn. 1974), suggesting that this stage of the proceeding is a discovery procedure for the accused, it is the commission's position, to the contrary, that McKeldin does not convert the preliminary hearing into a “fishing expedition," with unlimited potential for discovery. The case holds that the preliminary hearing is a probable cause hearing, which can result in providing discovery to the defendant, an important byproduct of its probable cause function. Rule 5.1 Advisory Commission Comment 10‘The Comment then acknowledges that discovery is addressed elsewhere in the rules, which has been previously discussed. Further, this Court has a duty under the rules of Statutory Construction to interpret statutes so as not nullify them. Statutory construction should be avoided, if possible, that would render one section of an act repugnant to another. Tennessee Flectric Power Co. v. Chattanooga, 114 $.W.2d 441, **444 (Tenn. 1937). This rule of statutory construction has been in place and referenced for almost 90 years in Tennessee. As such, Rule 17 cannot be used to obtain discovery in the possession of the State and law enforcement in General Sessions Court, else a conflict is created with previous higher court rulings and Rule 1 G. Cured by Indictment The Defendant was entitled to a preliminary hearing in General Sessions Court. The Defendant in fact had a preliminary hearing in General Sessions Court. The State presented evidence in General Session Court that established probable cause. The Defendant was then indicted by the Hamilton County Grand Jury, upon their finding of probable cause. The Defendant and argue any motions, constitutional or statutory, that relate to the issues in the case, The Defendant is now entitled, and has received, discovery pursuant to Rule 16. If there was error in the General Sessions Court, which the State argues that there was not, the error was harmless based on the subsequent indictment. For the reasons and law stated above, the State respectfully requests that this Honorable Court DENY Defendant’s Motion. Respectfully submitted, this st day of « |W , 2023. ul‘Coty Wamp District Attorney General, 11th Judicial District Thereby certify that a true and exact copy of the foregoing has been sent via email to Defendant's Atiomey, Josh Weiss, on this_| 4 day of \ PL _, 2023. General, 11th Judicial District 12