State v. Myron Garmon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED

NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00437

January 12, 1998

Appellee, * SHELBY COUNTY

VS. * Hon. James C. Beasley, Jr., Judge

Cecil Crowson, Jr.

MYRON GARMON, * (Aggravated Sexual Battery)

Appellate C ourt Clerk

Appellant. *

For Appellant: For Appellee:

Tony N. Brayton John Knox Walkup

Assistant Public Defender Attorney General and Reporter

201 Poplar Avenue, Suite 2-01

Memphis, TN 38103 Timothy F. Behan

(on appeal) Assistant Attorney General

450 James Robertson Parkway

Leslie Mozingo Nashville, TN 37243-0493

Assistant Public Defender

201 Poplar Avenue, Suite 2-01 David Henry

Memphis, TN 38103 Assistant District Attorney General

(at trial) 201 Poplar Avenue, Third Floor

Memphis, TN 38103

Of Counsel:

A.C. Wharton

Shelby County Public Defender

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE

OPINION

The defendant, Myron Garmon, was convicted of one count of

aggravated sexual battery. The trial court imposed a twelve-year sentence to be

served consecutively to sentences imposed in the State of Arkansas. In this appeal

of right, the defendant claims that the evidence was insufficient to corroborate his

confession; he also argues that the trial court should have sustained the defendant's

motion to dismiss for the state's failure to try the case within one-hundred-eighty

days from his request for trial.

We affirm the judgment of the trial court.

In June of 1994, the defendant, a resident of Jonesboro, Arkansas,

took his two sons and the six-year-old female victim to Libertyland in Memphis.

During the visit, the defendant touched the vaginal area of the victim. On June 27,

1994, at the Methodist Hospital in Jonesboro, a medical examination revealed no

signs of trauma to the victim.

The victim, who was wearing a dress at the time, recalled riding a

horse on the merry-go-round when she received a "bad touch" from the person

entrusted to care for her. She used a diagram to point out that she had been

touched in the vaginal area. The victim could not remember, however, who had

touched her. Lieutenant B.J. Smith of the Jonesboro Police Department in

Arkansas questioned the defendant on January 20, 1995, several months after the

incident. The defendant identified the victim only as Brandy and recalled that her

mother had been killed in a car wreck. He acknowledged that Brandy lived in

Arkansas but that the incident had occurred in Memphis. The defendant confessed

to police that he attempted to fondle the victim but quit when she objected.

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According to Lieutenant Smith, the defendant explained that "my desires got the

best of me."

At trial, the victim's father, Darrell Parker, acknowledged that the

victim's mother had been killed in a car accident between the time of the offense

and the interrogation of the defendant by the police.

There was only one defense witness called to testify. The defendant's

son, James Garmon, an eighth grader, recalled the trip to Libertyland with his older

brother Joe, the young victim, and the defendant. James could not recall a time

during the entire day that the defendant was alone with the victim. On cross-

examination, however, the witness did acknowledge that there were times during the

course of the day when he was outside of the view of the victim.

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The defendant claims that the state was unable to offer enough

evidence to prove that a crime had been committed. He argues that no witness

linked the defendant with the victim, that the hospital records did not substantiate

any unlawful touching, and that the victim was unable to identify her assailant.

The corpus delicti of a crime requires a showing that (1) a certain

result has been produced, and (2) the result was created through a criminal agency.

Ashby v. State, 139 S.W. 872 (Tenn. 1911); State v. Ervin, 731 S.W.2d 70 (Tenn.

Crim. App. 1986). Whether the state has sufficiently established the corpus delicti is

primarily a jury question. Williams v. State, 552 S.W.2d 772 (Tenn. Crim. App.

1977). All elements of the corpus delicti may be established by circumstantial

evidence. Clancy v. State, 521 S.W.2d 780 (Tenn. 1975). Only slight evidence of

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the corpus delicti is necessary to corroborate a confession and thus sustain a

conviction. Ricketts v. State, 241 S.W.2d 604 (Tenn. 1951). Corroborative findings

made in the course of the investigation in addition to the confession may be

sufficient to support the conviction. Ervin, 731 S.W.2d at 72.

In our view, the state met its burden of proof as to the corpus delicti.

See State v. Wayne Dillard Carver, No. 1152 (Tenn. Crim. App., at Knoxville, Aug.

1, 1988). This crime occurred in the summer of 1994 when the victim was six years

old. Witnesses were able to establish that the defendant had taken his two sons

and the victim to a theme park in Memphis during that time. There was a merry-go-

round in the theme park. While the victim could not identify her assailant, the

defendant acknowledged having fondled a young girl from Jonesboro, Tennessee,

whose first name matched that of the victim. The state was able to corroborate the

identity of the victim and the defendant by establishing that the victim's mother had

been killed in a car accident during the fall of 1994, a fact that the defendant had

acknowledged in his police interview. "A confession may sustain a conviction where

there is other evidence sufficient to show the commission of the crime by someone."

Taylor v. State, 479 S.W.2d 659, 661-62 (Tenn. Crim. App. 1972). Here, the

victim's testimony that she received a "bad touch," coupled with all of the other

evidence, is sufficient corroboration of the defendant's confession. Id. The

corroborative evidence necessary to support the corpus delicti need not be sufficient

in and of itself but only support "the essential facts ... to justify a jury inference of

their truth." Opper v. United States, 348 U.S. 84, 93 (1954). The state has satisfied

that standard.

II

The defendant next complains that on October 2, 1995, he filed a

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request for trial under Tenn. Code Ann. § 40-31-101, the Interstate Compact on

Detainers. The request was received by the authorities in Shelby County on either

October 7 or 17.1 A trial was set on March 11, 1996, but was continued because the

state desired to amend its notice of intent to seek an enhanced punishment and

provide notice of prior convictions to be utilized for impeachment purposes. See

Tenn. Code Ann. § 40-35-202(a)2 and Rule 609(a)(3),3 Tenn. R. Evid. The trial was

rescheduled for April 15, 1996, some 196 days after the defendant signed a

document requesting a trial in accordance with the terms of the compact. The

defendant argues that the delay beyond one hundred eighty days was neither

necessary nor reasonable and that the trial court erred by refusing to enter an order

of dismissal.

The state insists that there is nothing in the record other than the

assertions of defense counsel to indicate that the defendant made a request for trial

on October 2, 1995. It claims that the failure on the part of the defendant to include

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The re cord co ntains co nflicting inform ation abo ut when the state re ceived th e reque st.

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Notice of intent to seek enhanced punishment--Statement of enhancement and

mitigating factors.-- (a) If the district attorney general believes that a defendant should be sentenced

as a multiple, persistent or career offender, the district attorney general shall file a statement thereof

with the co urt and d efense couns el not less th an ten (1 0) days be fore trial or ac ceptan ce of a g uilty

plea; provided, that notice may be waived by the defendant in writing with the consent of the district

attorney ge neral and the cour t accep ting the plea . Such s tatem ent, which shall not be mad e know n to

the jury determining the guilt or innocence of the defendant on the primary offense, must set forth the

nature of the prior felony convictions, the dates of the convictions and the identity of the courts of the

convictions. The original or certified copy of the court record of any prior felony conviction, bearing the

same name as that by which the defendant is charged in the primary offense, is prima facie evidence

that th e def end ant n am ed th erein is the sam e as t he de fend ant b efor e the cour t, and is prim a fac ie

evidenc e of the fa cts set ou t therein.

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(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the

witness has been con victed of a crime ma y be admitted if the following procedures and conditions are

satisfied:

***

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the

accused reasonable written notice of the impeaching conviction before trial, and the court upon

requ est m ust d eterm ine th at the conv iction 's pro bative value on cr edibilit y outw eighs its un fair

prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior

to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final

dete rm inatio n tha t suc h pro of is a dm issib le for im pea chm ent p urpo ses , the a ccu sed need not a ctua lly

testify at the trial to later challenge the propriety of the determination.

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adequate information on this issue served as a waiver for appellate purposes. See

Rule 24(b), Tenn. R. App. P.; State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim.

App. 1990). The assistant district attorney general, while acknowledging that the

request for a trial was dated October 2, asserted that the request was not received

until October 17, 1995.

The trial court pointed out that regardless of the date utilized to

measure the one hundred eighty days, all Shelby County courts were closed on

April 5, 1996, a state holiday, and the entire week beginning Monday, April 8 for the

spring session of the Tennessee Judicial Conference. The trial began on the

following Monday. While implying that the delay was necessary, the trial judge ruled

that the one hundred eighty days was mainly a guideline and that the state had

acted in good faith in attempting to set a trial as early as possible.

The primary purpose of the Interstate Compact is to provide an

expedient, orderly disposition of the out-of-state charge upon which a detainer is

based. Dillon v. State, 844 S.W.2d 139 (Tenn. 1992). The compact seeks to

ensure that detainers are filed only when substantial grounds exist for bringing the

prisoner to trial in another jurisdiction. State v. Hill, 875 S.W.2d 278 (Tenn. Crim.

App. 1993). The compact procedure results in only a temporary transfer to the

receiving state. State ex rel. Young v. Rose, 670 S.W.2d 238 (Tenn. Crim. App.

1984).

The provisions of the Interstate Compact on Detainers are to be

construed liberally in favor of prisoners it was intended to benefit. State v. Gipson,

670 S.W.2d 637 (Tenn. Crim. App. 1984). The provisions of the compact are,

however, statutory rights, not fundamental, constitutional, or jurisdictional. Grizzell

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v. Tennessee, 601 F. Supp. 230 (M.D. Tenn. 1984). Failure to comply with the one-

hundred-eighty-day time limit does not automatically require a dismissal of the

indictment if a continuance beyond that period is necessary or reasonable. Gipson,

670 S.W.2d at 639. This court has held that a crowded docket was not a necessary

or reasonable ground for continuance and set aside the indictment. Id. Negligence

on the part of the state does not constitute good cause for delay. See State v.

Green, 680 S.W.2d 474 (Tenn. Crim. App. 1984), overruled on other grounds, State

v. Moore, 774 S.W.2d 590 (Tenn. 1989). A continuance granted ex parte has no

tolling effect. Dillon, 844 S.W.2d at 142.

The compact between the states provides in part as follows:

Whenever a person has entered upon a term of

imprisonment in a penal or correctional institution of a

party state, and whenever during the continuance of the

term of imprisonment there is pending in any other party

state any untried indictment, information or complaint on

the basis of which a detainer has been lodged against

the prisoner, the person shall be brought to trial within

one hundred eighty days after having caused to be

delivered to the prosecuting officer and the appropriate

court of the prosecuting officer's jurisdiction, written

notice of the place of the person's imprisonment and

request for a final disposition to be made of the

indictment, information or complaint; provided, that for

good cause shown in open court, the prisoner or the

prisoner's counsel being present, the court having

jurisdiction of the matter may grant any necessary or

reasonable continuance.

Tenn. Code Ann. § 40-31-101, art. III (a) (emphasis added).

By our calculations, the one hundred eighty days would have expired

by March 30, 1996, if the time is calculated from the defendant's claimed date of his

request for trial. The plain terms of the compact, however, require a trial within "one

hundred eighty days after having caused to be delivered to the prosecuting officer

and the appropriate court of the prosecuting officer's jurisdiction written notice of the

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person's imprisonment and request for a final disposition...." Our supreme court has

held that the one-hundred-eighty day period does not begin to run until the state and

the court have received the petition. State v. Moore, 774 S.W.2d 590, 593 (Tenn.

1989).

The record suggests the state received the petition on either October

7, 1995, or October 17, 1995. Regardless of which day the state received the

petition, the defendant is not entitled to relief.

If the petition was received on October 17, 1995, the trial should have

begun on April 14, 1996, in order to comply with the one hundred eighty-day

limitation. Because, however, April 14 was a Sunday, and the trial was commenced

on Monday, April 15, the rule was not violated. In United States v. Johnson, 953

F.2d 1167 (9th Cir. 1992), the state argued that because the one-hundred-eightieth

day fell on a Sunday, the Federal Rules of Criminal Procedure allowed for timely

commencement of the trial on Monday. The Ninth Circuit agreed: "States party to

the Interstate Detainers Act have used local time computing provisions analogous to

Fed. R. Crim. P. 45(a) to extend the 180 day limit when the 180th day is a Saturday,

Sunday, or legal holiday." Id. at 1172 (footnote omitted). Accordingly, we look to

Tenn. R. Crim. P. 45(a) for guidance:

Time.--(a) Computation.--In computing any period of time

the day of the act or event from which the designated

period of time begins to run shall not be included. The

last day of the period so computed shall be included

unless it is a Saturday, Sunday, or a legal holiday, ... in

which event the period runs until the end of the next day

which is not a Saturday, a Sunday, or a legal holiday ....

Even if the state had received the petition ten days earlier, the

defendant could not prevail. A failure to object to the date for a trial set beyond the

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one-hundred-eighty-day period precluded an application for discharge under the

compact. State v. Suarez, 681 S.W.2d 584 (Tenn. Crim. App. 1984), overruled on

other grounds, State v. Moore, 774 S.W.2d 590 (Tenn. 1989).4 In Suarez, the

defendant raised the issue for the first time on direct appeal of his armed robbery

convictions. The court rejected his claim:

[W]e hold that the defendant's failure to object to the trial

date at the time it was set or during the remainder of the

180-day period resulted in waiver of his rights under

Article III of the Interstate Compact on Detainers.

Suarez, 681 S.W.2d at 586. Here, defense counsel from all appearances agreed to

reschedule the trial and did not mention the violation of the Interstate Compact on

Detainers until after the time for compliance had passed. That would constitute a

waiver. Id. Federal law governs the interpretation of the Interstate Compact on

Detainers Act. Cuyler v. Adams, 449 U.S. 433 (1981). The federal courts have held

that rights under the compact can be waived. Kowalak v. United States, 645 F.2d

534 (6th Cir. 1981). See also Brown v. Wolfe, 706 F.2d 902, 903-04 (9th Cir. 1983).

Moreover, it would appear that the trial had been set for March 11,

1996, well within the one-hundred eighty-day period and was continued for good

and necessary reasons, much to the benefit of the defendant, when the state filed

its March 6, 1996, notice of intent to seek enhanced punishment and utilize prior

convictions for impeachment purposes. That there was no criminal court in Shelby

County from April 5 through April 14, 1996, indicates a good faith effort on all

involved to meet the primary purpose of the compact; that is, to provide an

expedient, orderly disposition of state charges outside of Arkansas.

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In Suarez, the court s tated the "1 80-day 'sta tute of lim itations' is trigger ed whe n the inm ate

delivers his request ... to his captors." 681 S.W.2d at 586. That portion of Suarez was over ruled in

Moore , where the court ruled that the time period did not commence until "the date on which

Tennesse e received notice ...." 774 S.W.2d at 593. The portion of Suarez discussing waiver,

how ever , is still th e law toda y.

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In pretrial argument, defense counsel acknowledged that the

continuance, due to an amended notice to include a 1973 Kansas conviction,

ultimately benefitted the defendant. It allowed her time to determine that the

conviction had been overturned on appeal and thus limit the sentence to a Range I.

Defense counsel made this further comment:

I am obligated, of course, to present all the law that I feel

is against my position, and that because of ... necessary

delays--the fact that there were no courts open last

week--the Friday before that was a holiday--and that all

the delays--all the continuances, with the exception of

from March 11 until today was based on the state; that it

appears from my reading of the law that we are still

within our one hundred eighty days.

(Emphasis added). The defense then conceded that it had sought a delay from

January 9 through February 1, 1996. The speedy trial provisions of the Act are

tolled by delay "occasioned by the defendant." Dillon, 844 S.W.2d at 142 (citations

omitted). Typically, delays at the hands of the defendant would fall into the category

of reasonable and necessary. See State v. Tyson, 603 S.W.2d 748 (Tenn. Crim.

App. 1980); Dillon, 844 S.W.2d at 142.

We hold that the record is inadequate for us to determine that the time

began to run before October 17, 1995; if it did, the trial was timely commenced. It is

the obligation of the appellant to provide an adequate record for the disposition of an

issue on appeal. Tenn. R. App. P. 24(b). In this instance, we cannot accurately

assess the number of days without further documentation from the trial court as to

when the request was received. Had the notice been received on October 7, 1995,

we would have nevertheless concluded that the continuance of the trial from the

March 11, 1996, setting was reasonable and necessary and much to the benefit of

the defendant. Certainly, the purposes of the compact were not abridged by the

developments in this case.

Accordingly, the judgment is affirmed.

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________________________________

Gary R. Wade, Judge

CONCUR:

_____________________________

David G. Hayes, Judge

_____________________________

Joe G. Riley, Judge

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