Daniels v. Traughber

ROBERT C. DANIELS, )

) Davidson Chancery

Plaintiff/Appellant, ) No. 96-1814-III

)

VS. )

)

CHARLES TRAUGHBER, Chairman, ) Appeal No.

TENNESSEE BOARD OF PAROLES, ) 01A01-9707-CH-00297

ET AL., )

)

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

FILED

AT NASHVILLE

May 6, 1998

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE Cecil W. Crowson

Appellate Court Clerk

HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

David L. Raybin, #3385

HOLLINS, WAGSTER & YARBROUGH, P.C.

2210 SunTrust Center, 424 Church Street

Nashville, Tennessee 37219

Joe Binkley, Sr., #2820

First American Center

315 Deaderick Street

Suite 2395

Nashville, Tennessee 37238-2395

ATTORNEYS FOR PLAINTIFF/APPELLANT

Patricia C. Kussman, #15506

Cordell Hull Building, Second Floor

425 Fifth Avenue South

Nashville, Tennessee 37243-0488

ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS IN SEPARATE OPINION:

BEN H. CANTRELL, JUDGE

WILLIAM C. KOCH, JR., JUDGE

ROBERT C. DANIELS, )

) Davidson Chancery

Plaintiff/Appellant, ) No. 96-1814-III

)

VS. )

)

CHARLES TRAUGHBER, Chairman, ) Appeal No.

TENNESSEE BOARD OF PAROLES, ) 01A01-9707-CH-00297

ET AL., )

)

Defendants/Appellees. )

OPINION

The plaintiff, a prisoner in the custody of the Department of Correction, filed in the Trial

Court a petition for the writ of certiorari from the action of the Board of Paroles on April 18,

1996, rescinding its order of April 9, 1994, granting the prisoner a parole. At the time of the

rescission, the prisoner had not been released from custody.

On July 27, 1989, the prisoner was convicted of second degree murder in the death of

Sylvia Coakley and sentenced to serve thirty-five years in the custody of the Tennessee

Department of Correction.

By letter dated November 27, 1989, the parents of the victim, requested the Board of

Paroles to notify them of any hearing by the Board in respect to the release of the prisoner.

By letter dated January 21, 1994, counsel for the parents notified the Board that he

represented the parents of the victim; that they strongly opposed any early release of the prisoner;

and that he desired to be notified of any hearing on the subject of the release of the prisoner.

On April 9, 1996, the board held a hearing regarding the release of the prisoner. The

Board attempted to notify the parents of the victim, but the letter was not delivered because the

parents had moved from the address furnished by them.

-2-

No effort was made to notify counsel of the parents of the victim as requested by him,

although his correct mailing address was on file with the Board.

On the same date, the Board approved the early release of the prisoner effective July 15,

1996. The prisoner was still in custody when the Board next acted on April 18, 1996.

On April 10, 1996, Honorable Cheryl Blackburn, Assistant Attorney General, wrote the

Board protesting the meeting and action of the Board without notification to her and reminding

the Board of the strong opposition of her office to any early release of the prisoner.

On April 18, 1996, the Board met again, heard the parents of the victim and rescinded

its April 9, 1996, action.

On June 14, 1996, the present suit was filed seeking:

Immediate injunctive relief, common law writ of certiorari,

Federal Civil Rights violation under 42 USC § 1983, both for

money damages and for prospective injunctive relief.

The Trial Court heard the matter without a jury and, on June 24, 1997, filed a

Memorandum and Order stating:

This matter is before the Court on the plaintiff’s

request for issuance of a writ of certiorari. The premise of the

request for the writ is that the defendant members of the

Board of Paroles (“Board”) acted fraudulently, illegally or

arbitrarily in granting the plaintiff parole on April 9, 1996,

and then subsequently rescinding the grant of parole on April

18, 1996.

The defendants deny that there are grounds for the

issuance of the writ. They assert that they acted pursuant to

applicable statutes and rules. The defendants argue that they

acted legally and that the rescission of parole was reasonable.

Having considered the entire record and the argument

of counsel and having carefully studied this matter, the Court

determines that the plaintiff has failed to carry his burden in

demonstrating his entitlement to issuance of a writ of

certiorari. For the reasons set forth below, the Court

-3-

determines that the application for writ of certiorari shall be

denied.

Facts

The record before the Court reveals that the plaintiff

was convicted of second degree murder of his former wife

and was sentenced to thirty-five years imprisonment on July

27, 1989. During the seven and one-half years the plaintiff

was confined, he had a good institutional record and was

accorded trustee status.

A parole release hearing was conducted on April 9,

1996. The plaintiff’s application for parole was supported by

recommendations from two assistant wardens, other prison

personnel, and friends. The hearing officials unanimously

recommended that the plaintiff be released on July 15, 1996

on parole.

Subsequent to the April 9, 1996 hearing, the victim’s

family complained to the Board that neither they nor their

attorney/representative had been notified of the April 9, 1996

hearing. The Assistant District Attorney General, who had

prosecuted the case against the plaintiff, also complained that

she had failed to receive notice of the April 9, 1996 hearing.

The record reveals that notice of the April 9, 1996

hearing was mailed to the victim’s family, but that they did

not receive the notice because they had moved and had not

sent their new address to the Board. The family, however,

had requested that their attorney, Larry Roberts, receive notice

of parole hearings. Filed with the Court by the defendants is

a letter dated January 21, 1994 from Mr. Roberts stating, “My

clients strongly oppose any early release date for Mr. Daniels,

and I would ask that you notify me of any hearing of any thing

which could result in Mr. Daniels’ release from confinement

[emphasis added].” The record reveals that the Board failed

to notify Mr. Roberts of the April 9, 1996 hearing. The

record further establishes that notice was mailed to the office

of the District Attorney but for some reason the District

Attorney who handled the case, Judge Cheryl Blackburn, did

not receive the notice.

Thereafter, written victim impact statements were

received by the Board, and on April 18, 1996, a parole

rescission hearing was held. The victim’s aunt and cousins

testified regarding the impact of the crime on the victim’s

family. The victim’s mother testified regarding the impact of

the crime on the victim’s family. The victim’s mother

testified, attributing a stroke her husband suffered and that her

son sustained cirrhosis of the liver to the crime. The same

three Board members, Traughber, Hill and Chase,

unanimously voted to rescind the plaintiff’s parole. The

stated reasons were, “Declined; Review 4/99; Seriousness of

Offense; Impact on Victim’s Family.”

-4-

The plaintiff then filed a request for appeal of the final

decision of the April 18, 1996 hearing. The appeal was

denied on May 7, 1996 on the grounds that the request did not

meet any of the established criteria for granting an appeal

hearing.

Subsequent to rescission of his parole, the plaintiff

was immediately transferred from a minimum security

facility, Nashville Community Service Center, to a maximum

security facility, Middle Tennessee Reception Center.

Conclusions of Law

To be entitled to a writ of certiorari, the plaintiff must

demonstrate that the action of the Board was illegal,

fraudulent or arbitrary:

Under common law writ of certiorari,

questions of law only will be reviewed by the

courts. An action of an administrative agency

which is not supported by any evidence is

arbitrary and may be quashed on common law

writ of certiorari. Whether or not there is any

material evidence to support the action of the

agency is a question of law to be decided by

the reviewing court upon examination of the

evidence introduced before the agency. Any

additional evidence offered to the reviewing

court is limited to the question of whether the

agency exceeded its jurisdiction, or acted

fraudulently, illegally or arbitrarily.

Watts v. Civil Service Board for Columbia, 6065 S.W.2d 274,

276-77 (Tenn. 1980).

In the case at bar, the plaintiff asserts that the writ is

appropriate because the information presented to the Board on

April 18, 1996 was no different from the information

considered by the Board on April 19, 1996. The plaintiff

argues that the Board was influenced by media and popular

opinion concerns, and that those concerns caused the Board

to arbitrarily rescind the plaintiff’s parole.

The defendants concede that if there were no

differences between the evidence presented at the parole grant

hearing and that presented at the parole rescission hearing

then it would have been arbitrary for the Board to have

rescinded the plaintiff’s parole because there would have been

no evidence to support the Board’s decision. The defendants,

however, point to several differences between the April 9,

1996 hearing and the April 18, 1996 hearing which

differences they assert support the decision to rescind parole.

First, the defendants note that the victim’s aunts and

cousins were present at the April 18, 1996 hearing and that

the live testimony of these individuals, as well as their bearing

-5-

and demeanor, greatly distinguished the April 18, 1996

hearing from the April 9, 1996 hearing. The defendants point

out that the victim’s mother testified that her husband, the

victim’s father, was now in a nursing home suffering from a

stress related stroke due to the death of their daughter, and

that their son suffered from cirrhosis of the liver as a result.

The defendants further assert that Judge Cheryl

Blackburn, the former Assistant District Attorney who

prosecuted the plaintiff, was present at the April 18, 1996

hearing and pointed out discrepancies in the plaintiff’s

testimony at the April 9, 1996 parole hearing and testimony

from his trial. At the April 9, 1996 parole hearing the

plaintiff had described an altercation with his former wife in

which he characterized that he “wrestled” with her. Judge

Blackburn read parts of the transcript from the plaintiff’s

criminal trial which established that the plaintiff had bounced

the victim’s head off of the ground, had bitten her, and that

she had sustained a large bruise on her left arm, a swollen eye

and abrasions on her right and left shoulders.

Based upon the foregoing, the Court concludes that

the plaintiff has failed to carry his burden in demonstrating his

entitlement to a writ of certiorari.

First, the Board did not act fraudulently, illegally or

arbitrarily in scheduling a second hearing to reconsider its

April 9, 1996 decision to grant parole. Tennessee Code

Annotated section 40-28-505(b) provides that at least fourteen

days prior to a scheduled parole hearing, the Board is to notify

the victim or the victim’s representative of the date and place

of the parole hearing. If the Board fails to give the required

notice to the victim, the Board shall consider any written

victim impact statement submitted within fifteen days after

the parole decision has been finalized. If the Board

determines that the impact statement warrants a new hearing,

the Board shall schedule such a hearing with notice to the

parties listed in the statute. Tenn. Code Ann. § 40-28-

505(d)(2). Any notice required to be provided to the victim

or the victim’s representative is to be mailed to the last known

address. Tenn. Code Ann. § 40-28-505(e). “It is the

responsibility of the victim or the victim’s representative to

provide the Board a current mailing address.” Id.

The Court finds, since the victim’s family had

requested that attorney Larry Roberts be notified of parole

matters and since attorney Roberts formally notified the

Board of this request by letter dated January 21, 1994, that

attorney Larry Roberts qualifies under section 40-28-

501(b)(4) as a “victim’s representative who has requested

notice of the date and place of the scheduled hearing” so as to

warrant the Board sending him notice of the April 9, 1996

hearing. When the Board failed to send notice to attorney

Roberts, that failure triggered the provisions of section 40-28-

505(d), providing for a new hearing upon receipt of a written

impact statement from a victim’s family. The record reveals

-6-

that such a statement was received by the Board. The Court,

therefore, concludes that the Board proceeded legally,

correctly and validly pursuant to section 40-28-505 in

scheduling a new hearing upon receiving a written impact

statement from the victim’s family subsequent to the failure

of the Board to notify the representative of the victim’s

family, attorney Larry Roberts, of the April 9, 1996 hearing.

With respect to the decision to rescind the plaintiff’s

parole based on differences between the April 9, 1996 hearing

and the April 18, 1996 hearing, the Court finds that the Board

reasonably could have found the plaintiff’s testimony at the

April 9, 1996 hearing describing the July 13 altercation with

his former wife misleading. The plaintiff describes the

altercation as “wrestling” with his former wife. The details of

that altercation as indicated in the trial transcript were that the

plaintiff had bounced the victim’s head off the ground, had

bitten her and that she had sustained a large bruise on her left

arm, a swollen left eye and abrasions on her right and left

shoulders. As to the substantiality of live testimony, the

Court concludes that observing the demeanor of witnesses as

well as hearing their testimony could lead to a different

conclusion about the impact of a crime on a family than just

reviewing written information.

The choice to grant or deny parole involves a personal

observation filtered through the experience of the decision

maker and leading to a predictive judgment as to what is best

both for the individual inmate and for the community.

Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1, 7-8, 99 S.Ct. 2100, 60 L.

Ed.2d 688 (1979). A determination of whether to release a

particular inmate on parole “must include consideration of

what the entire record shows up to the time of the sentence,

including the gravity of the offense in that particular case.”

Id. at 442 U.S. at 15.

The Court finds that the combination of live testimony

from the victim’s family as well as the discrepancy between

the plaintiff’s testimony at the April 9, 1996 of his altercation

with his former wife and the facts of that altercation

established at trial are substantial enough distinctions to

support the Board changing its decision regarding parole and,

therefore, that the change in the decision regarding parole

from the April 9 hearing to the April 18 hearing was not

arbitrary.

It is, therefore, ORDERED that the plaintiff’s

application for writ of certiorari is denied. Costs are taxed to

the plaintiff.

On appeal, the prisoner presents the following issues:

1. Whether the Board’s rescission of Mr. Daniels’

parole was in violation of the due process provisions of the

United States and Tennessee Constitutions, specific

-7-

Tennessee statues, and the Parole Board’s own rules and

regulations.

2. Whether the Board’s rescission of parole was arbitrary

and illegal given that the “seriousness of the offense” could

not form the basis of a parole rescission.

3. Whether the provisions of T.C.A. § 40-28-505

contemplate that an attorney for the family of a person who

was killed, constitutes a “statutory victim” for purposes of

parole hearing notification where the family has already

requested notification but has failed to keep the Parole Board

advised of their current address as the statute requires.

The Board expresses the issues as follows:

Tennessee law provides that a common law writ of certiorari

will issue when an agency action has been illegal or is not

supported by an evidence. The Board of Paroles scheduled a

second parole hearing for the appellant after hearing that his

victim’s family had not received notice of his initial hearing.

After holding a second hearing where his victim’s family was

permitted to protest his release, the Board rescinded the

appellant’s grant of parole. The issues presented on appeal

are:

1. Whether rescinding the appellant’s parole violated

state and federal constitutional guarantees of due process,

Tenn. Code Ann. § 40-28-505, and/or the Rules of the Board

of Paroles;

This statute provides that if the Board fails to

provide advance notice of a scheduled parole

hearing to a victim or victim’s representative,

the Board may schedule a subsequent hearing

if a written victim impact statement warrants

it.

2. Whether testimony from the victim’s family at

the second hearing constituted “pertinent information

not available at the time of the [first] hearing”

sufficient to justify parole rescission; and

3. Whether Tenn. Code Ann. § 40-28-505

permits a victim to request notification of scheduled

parole hearings through an attorney.

Applicable Law

T.C.A. § 40-28-117 provides in pertinent part as follows:

-8-

40-28-117. Grounds for parole - Terms. (a) Parole being

a privilege and not a right, no prisoner shall be released on

parole merely as a reward for good conduct or efficient

performance of duties assigned in prison, but only if the board

is of the opinion that there is reasonable probability that such

prisoner, if released, will live and remain at liberty without

violating the law, and that the prisoner’s release is not

incompatible with the welfare of society.

T.C.A. § 40-28-505 provides in pertinent part as follows:

(b) At least thirty (30) days prior to

a scheduled parole hearing and three (3) days prior to a parole

revocation hearing, the board shall send a notice of the date

and place of the hearing to the following individuals:

(1) The trial judge for the court in which the

conviction occurred, or the trial judge’s successor;

(2) The district attorney general in the county in

which the crime was prosecuted;

(3) The sheriff of the county in which the crime

was committed; and

(4) The victim or the victim’s representative who

has requested notification of the date and place of the

scheduled hearing and/or notice of the board’s final decision.

----

( c) No later than thirty (30) days after a parole or

parole revocation decision has been finalized, the board shall

send notice of its decision to those required to receive notice

under subsection (b), together with notice that any victim

whom the board failed to notify as required in subsection (b)

has the opportunity to have a written victim impact statement

considered by the board, pursuant to subsection (d).

----

(2) If within fifteen (15) days after a parole or a

parole revocation decision has been finalized, the board

receives a written victim impact statement from a party to

whom the board failed to provide the notice required in

subsection (b), the board shall consider the statement. If the

board finds that the victim impact statement warrants a new

hearing, it shall schedule such a hearing, subject to all

notification requirements under subsection (b).

T.C.A. § 40-28-503 reads as follows:

40-28-503. Attendance policies - Standard victim

notification form.

(a) The board shall establish a policy governing

attendance at board hearings and submission and use of

victim impact statements. Copies of the policy shall be

available upon request. The policy shall govern:

-9-

(1) The requirement that those requesting

notification of parole and parole revocation hearings keep the

board advised of their current addresses and telephone

numbers;

(2) Instructions for attending and participating in

parole and parole revocation hearings;

(3) The limitations on attendance as set forth in §

40-28-502;

(4) Reasonable limitations on oral presentations;

and

(5) Information about board discretion to

investigate victim impact statements.

(b) The board shall establish a standard victim

notification form. The board shall distribute copies of such

forms to the victim witness coordinator in each judicial

district for the state who shall make copies of the form

available to the appropriate persons. [Acts 1993, ch. 336, § 3.]

Under the common law writ of certiorari, the reviewing court is limited to the

inquiry of whether the administrative agency acted fraudulently, illegally or arbitrarily.

Watts v. Civil Service Board for Columbia, Tenn 1980, 606 S.W.2d 274.

Nothing is found in this record to indicate that the Board acted fraudulently, illegally

or arbitrarily.

A prisoner has no constitutional or inherent right to conditional release prior to the

expiration of a valid sentence. Grienholtz v. Inmates of Nebraska, Penal and Correctional

Complex, 442 US1, 99 S.Ct. 2100, 60 L.Ed. 2d 668 (1979); Kaylor v. Bradley, Tenn. App.

1995, 912 S.W.2d 728.

The parole of prisoners rests solely within the discretion of the Board of Paroles.

Wright v. Trammell, 6th Cir. 1987, 810 F.2d 589.

-10-

A prisoner possesses no protected liberty interest in a unilaterally expected release.

Jago v. Van Curen, 454 US 14, 102 S.Ct., 70 L.Ed.2d 13 (1981).

A prisoner’s right to early release must be found in the State Statutes and Rules of

the Board. Wells v. Tennessee Board of Paroles, Tenn. App. 1995, 909 S.W.2d 826.

Nothing is found in this record to indicate that any constitutional or inherent right of

the prisoner has been violated.

The prisoner complains that the Board heard evidence from the victims tending to

exacerbate the seriousness of his offense.

The administrative record contains a hand written summary of the evidence received

by the Board at the April 18, 1996 hearing. It includes the following:

Ms. Blackburn showed pictures of victim’s property, bruises

on Mrs. Coakley --- read portions of transcript.

Robert Schultz was present August 16, 1988. Subject shot

through door - shot Mrs. Coakley.

Larry Roberts spoke of continued violence in this case.

Showed pictures of Mrs. Coakley after she was shot.

Mary Mathews - Friend, showed picture of Mrs. Coakley prior

to incidents. Very attractive. Spoke of the violence against

Mrs. Coakley.

Mrs. Coakley - Mother of victim. Many Tears.

Mary Ann Austin - Sylvia Coakley’s aunt. Many tears. Been

detrimental to family.

Carla Sanders - Cousin to victim. She said body was so bad

they had a closed casket funeral. Read from a paper. Showed

much hostility.

The right of peaceable protest and petition for redress of grievance is constitutional.

U.S. Constitution, Amendment I; Tennessee Constitution, Article I, Section 23. Inherent in

-11-

such rights is the rights of citizens to demonstrate personally the intensity of their sentiments.

The Board did not initially have the benefit of the exercise of these rights. At its second

hearing it did have the benefit of these expressions and rebuttal of the prisoner’s testimony

of a gentle and accidental murder.

In view of the statutes relating to the Board of Paroles, quoted above, the arguments

regarding the Open Meetings Law are deemed irrelevant.

The letter from the attorney for the family of the victim was effective to furnish the

Board with a new address for the family, i.e., in care of their attorney. Moreover, as counsel

for interested parties, he was entitled to notice in his own right.

Each of the issues present above has been examined and resolved. No reversable

error is found in the actions of the Board or the Trial Court.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the appellant. The cause is remanded to the Trial Court for necessary further proceedings.

AFFIRMED AND REMANDED

_________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS IN SEPARATE OPINION:

BEN H. CANTRELL, JUDGE

WILLIAM C. KOCH, JR., JUDGE

-12-