State of Tennessee v. David Gilliam

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 28, 2010

STATE OF TENNESSEE v. DAVID GILLIAM

and JOE EDWARD MCCOWN, III

Appeal from the Criminal Court for Hamilton County

Nos. 268800 and 268801 Rebecca J. Stern, Judge

No. E2009-01079-CCA-R3-CD 1 - Filed July 6, 2010

In this consolidated appeal, the State challenges the trial court’s dismissal of the charges of

official misconduct, see T.C.A. § 39-16-402 (2006), and official oppression, see id. § 39-16-

403, against each defendant. The State contends that the court erroneously concluded that

the defendants, as employees of Corrections Corporation of America, were not public

servants as that term is used in Tennessee Code Annotated sections 39-16-402 and -403.

Because we agree with the State, we reverse the trial court’s order dismissing the charges in

each case and remand the cases to the Criminal Court of Hamilton County.

Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.

T IPTON, P.J., and J.C. M CL IN, J., joined.

Lisa Z. Bowman, Chattanooga, Tennessee (on appeal), and Lisa A. Espy, Chattanooga,

Tennessee (at trial), for the appellant, David Gilliam.

Cindy P. Bice, Chattanooga, Tennessee, for the appellant, Joe Edward McCown, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; William H. Cox, III, District Attorney General; and William Hall, Assistant District

Attorney General, for the appellee, State of Tennessee.

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In response to the State’s motion, this court consolidated case numbers E2009-01079-CCA-R3-CD

and E2009-01233-CCA-R3-CD into the single case number E2009-01079-CCA-R3-CD.

OPINION

In July 2008, the State charged the defendants, David Gilliam and Joe Edward

McCown, III, both of whom worked as correctional officers at the Hamilton County

Workhouse, by indictment with one count of official misconduct, see T.C.A. § 39-16-402,

and one count of official oppression, see id. § 39-16-403. Shortly thereafter, defendant

Gilliam moved the trial court to dismiss the indictment on the basis that he, as an employee

of Corrections Corporation of America (“CCA”), did not qualify as a “public servant” as that

term is used in the statutes proscribing official misconduct and official oppression. The trial

court agreed and granted Gilliam’s motion to dismiss on April 27, 2009. Later, defendant

McCown’s counsel orally moved the court to dismiss the charges on the same basis, and the

trial court granted the motion. The State filed a timely notice of appeal pursuant to

Tennessee Rule of Appellate Procedure 3, and this court granted the State’s request to

consolidate the appeals.

The single question raised in this appeal, whether the defendants in this case

are subject to prosecution via Code sections 39-16-402 and -403, is a question of law subject

to de novo review. Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 2010) (“The

construction of a statute and its application to the facts of a case are questions of law, which

we review de novo with no presumption of correctness afforded to the lower court’s

conclusions.”); see also Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000).

In an issue of first impression, the defendants in this appeal claim that because

they are correctional officers employed by private prison contractor CCA, they are not

“public servants” and cannot, therefore, be prosecuted under the terms of Code sections 39-

16-402 and -403. The State, citing Alex Friedmann v. Corrections Corporation of America,

No. M2008-01998-COA-R3-CV (Tenn. Ct. App., Nashville, Sept. 16, 2009), perm. app.

denied (Tenn. 2010), contends that the defendants are public servants because they are

performing a service traditionally entrusted to the government.

Initially, we note that although not cited by the parties or the trial court,

Tennessee Code Annotated section 41-24-108 specifically extends the provisions of Code

sections 39-16-402 and -403 to employees of private prison contractors: “The provisions of

title 39, chapter 16 . . . shall apply to offenses committed by or with regard to inmates

assigned to facilities or programs for which a prison contractor is providing correctional

services.” T.C.A. § 41-24-108 (2006). The unambiguous terms of this statute, which is part

of the Private Prison Contracting Act of 1986, clearly subject the defendants to criminal

liability for “offenses committed . . . with regard to inmates” assigned to the Hamilton

County Workhouse, where the defendants were employed.

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Moreover, because we agree with the court of appeals that by operating a

correctional facility, a function traditionally performed by the State, CCA and its employees

were engaged in a governmental function, see Alex Friedmann, slip op. at 11, we conclude

that the defendants qualify as public servants as that term is used in Code sections 39-16-402

and -403. Tennessee Code Annotated section 39-16-402 provides:

(a) A public servant commits an offense who, with intent to

obtain a benefit or to harm another, intentionally or knowingly:

(1) Commits an act relating to the servant’s office or

employment that constitutes an unauthorized exercise of official

power;

(2) Commits an act under color of office or employment

that exceeds the servant’s official power;

(3) Refrains from performing a duty that is imposed by

law or that is clearly inherent in the nature of the public

servant’s office or employment;

(4) Violates a law relating to the public servant’s office

or employment; or

(5) Receives any benefit not otherwise authorized by law.

T.C.A. § 39-16-402(a). Code section 39-16-403 provides:

(a) A public servant acting under color of office or employment

commits an offense who:

(1) Intentionally subjects another to mistreatment or to

arrest, detention, stop, frisk, halt, search, seizure, dispossession,

assessment or lien when the public servant knows the conduct

is unlawful; or

(2) Intentionally denies or impedes another in the

exercise or enjoyment of any right, privilege, power or

immunity, when the public servant knows the conduct is

unlawful.

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T.C.A. § 39-16-403. Code section 39-16-401 defines the term public servant:

(3) “Public servant” means a person elected, selected, appointed,

employed, or otherwise designated as one (1) of the following

even if the public servant has not yet qualified for office or

assumed the duties:

(A) An officer, employee, or agent of government;

(B) A juror or grand juror;

(C) An arbitrator, referee, or other person who is

authorized by law or private written agreement to hear or

determine a cause or controversy;

(D) An attorney at law or notary public when

participating in performing a governmental function;

(E) A candidate for nomination or election to public

office; or

(F) A person who is performing a governmental function

under claim of right although not legally qualified to do so.

T.C.A. § 39-16-401. As the court of appeals explained,

[W]e conclude, without difficulty, that . . . CCA is operating that

facility as the functional equivalent of a state agency . . . . The

providing of prisons is a responsibility that the State cannot

delegate to a private entity. While the State can contract with a

private entity such as CCA to operate a prison consistent with

the provisions of the Private Prison Contracting Act of 1986, the

ultimate responsibility to provide for its prisoners belongs to the

State of Tennessee.

Alex Friedmann, slip op. at 12. As the court observed, our state constitution requires that the

State provide for “the erection of safe prisons, the inspection of prisons, and the humane

treatment of prisoners.” Tenn. Const. art. 1, § 32; see Alex Friedmann, slip op. at 11. We

conclude, as did the court of appeals, that the performance of this constitutionally mandated

duty cannot be “considered anything less than a governmental function.” Alex Friedmann,

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slip op. at 11. As such, the defendants, whose job was the oversight of and provision for the

incarcerated, were likewise performing a governmental function, a function, we would add,

that our Code gives them the lawful right to do. Cf. State v. Lankford, 51 S.W.3d 212, 217

(Tenn. Crim. App. 2001) (“There is nothing in the escape statute to support treating

out-of-state prisoners housed in private prison facilities differently from in-state prisoners

housed in similar facilities. The defendants were no less in ‘custody,’ for the purposes of the

[Tennessee escape] statute, than would be a Tennessee prisoner housed in a private facility

pursuant to a contract between the Tennessee commissioner of correction and a private prison

company.”).

As further support for our conclusion, we observe that this court, in Lankford,

concluded that the defendants in that case, Montana prisoners housed in a CCA facility in

this state, were in “custody” as that term is used in Code section 39-16-601. That statute

provides: “‘Custody’ means under arrest by a law enforcement officer or under restraint by

a public servant pursuant to an order of a court.” T.C.A. § 39-16-601(2). Because

employees of private prison contractors are not law enforcement officers, see id. § 39-11-

106(21) (“‘Law enforcement officer’ means an officer, employee or agent of government

who has a duty imposed by law to . . . [m]aintain public order; or . . . [m]ake arrests for

offenses, whether that duty extends to all offenses or is limited to specific offenses; and . .

. [i]nvestigate the commission or suspected commission of offenses.”), this court’s

conclusion that Lankford and McKeon had satisfied the “custody” requirement necessarily

included a conclusion that they were “under restraint by a public servant.”

The trial court’s reliance on Younger v. State, 205 S.W.3d 494 (Tenn. Ct. App.

2006), is misplaced. There, the court of appeals concluded that “the proper defendant for

negligence claims arising from the action of private contractors, or their employees, in

operating correctional facilities is the contractor, and not the State.” Younger v. State, 205

S.W.3d 494, 499 (Tenn. Ct. App. 2006). As such, this holding has no bearing on the issue

whether the defendants in this case are public servants under the terms of Code section 39-

16-402 and -403.

Because Code section 41-24-108 specifically extends criminal liability under

Code sections 39-16-402 and -403 to the employees of private prison contractors, we

conclude that those statutes apply to the defendants in this case. Further, because the

defendants were performing a governmental function, they qualify as public servants as that

term is used in Code sections 39-16-402 and -403. In consequence, the trial court

erroneously dismissed the indictments in this case.

Accordingly, the judgments of the trial court are reversed, and the cases are

remanded to the trial court for further proceedings.

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_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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