Howard Hawk Willis v. Grand Jury Foreperson Beverly Johnson

09/27/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 5, 2018

HOWARD HAWK WILLIS v.

GRAND JURY FOREPERSON BEVERLY JOHNSON

Appeal from the Chancery Court for Bradley County

No. 2017-CV-173 Jerri S. Bryant, Chancellor

No. E2017-02225-COA-R3-CV

The pro se appellant, a state inmate incarcerated on capital murder convictions, filed a

petition for a writ of mandamus in the Bradley County Chancery Court (“trial court”).

Claiming to have information regarding a homicide other than those for which he was

convicted, the petitioner requested that the trial court direct the Bradley County Grand

Jury foreperson to grant him the right to testify before the grand jury pursuant to

Tennessee Code Annotated § 40-12-104 (2014). The petitioner subsequently filed a

motion to be transported for a hearing, requesting that the trial court issue a habeas

corpus ad testificandum. The State of Tennessee (“the State”) then filed a response in

opposition to the petition for writ of mandamus. The petitioner responded by filing a

motion to strike the State’s response, arguing that the State was not a proper party to this

action. On October 26, 2017, the trial court entered an order dismissing the petition for

writ of mandamus, finding, inter alia, that the petitioner possessed no mandatory right to

appear before the grand jury. The petitioner has appealed. Discerning no reversible

error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.

BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Howard Hawk Willis, Nashville, Tennessee, Pro Se.

Crystal R. Freiberg, Bradley County Attorney, Cleveland, Tennessee, for the appellee,

Grand Jury Foreperson Beverly Johnson.

OPINION

I. Factual and Procedural Background

The petitioner, Howard Hawk Willis, was convicted following a jury trial in 2010

of two counts of premeditated first-degree murder and one count of felony murder in the

perpetration of a kidnapping for the October 2002 murders of two teenaged victims,

Adam Chrismer and Samantha Chrismer. See State v. Willis, 496 S.W.3d 653, 665-66

(Tenn. 2016), cert. denied, 137 S.Ct. 1224 (Mar. 6, 2017). Mr. Willis was sentenced to

death for each conviction, and his convictions and sentences were upheld on direct appeal

by the Tennessee Court of Criminal Appeals, see State v. Willis, No. E2012-01313-CCA-

R3-DD, 2015 WL 1207859, at *1 (Tenn. Crim. App. Mar. 13, 2015), and the Tennessee

Supreme Court, see State v. Willis, 496 S.W.3d at 761. Mr. Willis remains confined at

the Riverbend Maximum Security Institution in Nashville.

On July 5, 2017, Mr. Willis initiated the instant action by filing a petition for a

writ of mandamus in the trial court, claiming to have “credible evidence” regarding the

2002 murder of his stepfather, Samuel Johnson Thomas, and alleged “official misconduct

that has occurred within the investigation of [Mr. Thomas’s] murder by the Bradley

County Sheriff’s Department.” Naming as a “defendant”/respondent the then foreperson

of the Bradley County Grand Jury, Beverly Johnson (“the Foreperson”), Mr. Willis

requested that the trial court issue a writ of mandamus ordering the Foreperson to “meet

with [Mr. Willis] allowing him to provide the evidence he has in the murder of Samuel

Johnson Thomas and of official misconduct in said investigation thereof.” In support of

his petition, Mr. Willis relied on Tennessee Code Annotated § 40-12-104(a)-(c)

concerning witnesses in grand jury proceedings.

Mr. Willis attached several documents to his petition, including affidavits

executed by him; correspondence initiated by him with the Tennessee Attorney General,

Tenth Judicial District Attorney General, Bradley County Sheriff’s Department, and the

previous Bradley County Grand Jury foreperson; two petitions he had prepared to file in

the Bradley County Criminal Court (“criminal court”) seeking to testify before the grand

jury; and a printout from the Tennessee Offender Management Information System

(“TOMIS”) reflecting his security status as an inmate. An attached criminal court

petition, styled as a “Petition to Enforce the Petitioners [sic] Statutory Right to Testify

Before the Grand Jury,” included a certificate of service executed by Mr. Willis,

indicating that he had served the petition on the “Bradley County District Attorney’s

Office” on May 2, 2014. In a subsequent letter to the state attorney general at the time,

Mr. Willis asserted that the criminal court had not filed this petition upon the alleged

direction of the criminal court judge and district attorney general. Mr. Willis’s

attachments to the petition at issue in the present action also included an undated

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“Petition for Writ of Habeas Corpus Ad Testificandum,” styled for filing in the criminal

court with the Foreperson and District Attorney General Steven Crump named as

“defendants”/respondents.

As the Foreperson notes, Mr. Willis had also sought injunctive relief in federal

court under 42 U.S.C. § 1983, filing a complaint against General Crump in the United

States District Court for the Eastern District of New York, which was subsequently

transferred to the United States District Court for the Eastern District of Tennessee at

Chattanooga. See Willis v. Crump, No. 1:15-cv-258-CLC-CHS, 2015 WL 8781215, at *1

n.1 (E.D. Tenn. Dec. 14, 2015) (explaining that at the time he filed the federal complaint,

Mr. Willis was in the Eastern District of New York “in connection with a resentencing

hearing on a cocaine conspiracy conviction”). Mr. Willis requested that the federal court

enjoin General Crump and “‘state officials, employees, assigns, and et als [sic]’ from

depriving [Mr. Willis] of his right to present evidence to a Bradley County grand jury—a

right allegedly secured to him by Tenn. Code Ann. § 40-12-104(a) and (b).” Id. at *1.

Determining, inter alia, that Mr. Willis’s complaint did “not present a [federal]

constitutional violation,” the federal court dismissed Mr. Willis’s complaint in December

2015. Id. at *4.

On July 14, 2017, Mr. Willis filed in the trial court a “Motion to be Transported

for Hearing,” requesting that the trial court issue a habeas corpus ad testificandum “to

insure [Mr. Willis’s] presence for hearing.” He concomitantly filed a “Petition for Writ

of Habeas Corpus Ad Testificandum” as well. On July 26, 2017, the State, acting

through General Crump, filed a response in the trial court in opposition to Mr. Willis’s

petition for writ of mandamus, arguing, inter alia, that “[t]here is no basis, process or

authority for transporting an inmate to appear before a grand jury.” The State also

asserted that the issuance of a writ of mandamus would not be proper because Mr. Willis

was “attempting to collaterally attack his convictions.” The State summarized that “[i]n

all of his material presented, [Mr. Willis] indicates that if he is allowed to present

evidence, then that evidence of a past crime would somehow exonerate him with regard

to his current convictions.”

The State attached to its response, inter alia, a letter dated October 11, 2016, from

Bradley County Criminal Court Judge Sandra N.C. Donaghy to Mr. Willis, in which

Judge Donaghy had responded to a letter previously written by Mr. Willis to the

Foreperson, who had requested Judge Donaghy’s advice in responding. Judge Donaghy

stated in pertinent part:

It is the duty of the district attorney general to prosecute all

violations of the state criminal statutes and perform all prosecutorial

functions attendant thereto for the protection of the state or in public

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interest. Accordingly, I will transfer the materials sent to Ms. Johnson to

General Crump for investigation and review. I encourage you to work with

his office in this process.

I agree with your assertion that T.C.A. [§] 40-12-104 allows a

citizen to apply to present a case to the grand Jury for review. The Grand

Jury will allow you to present this matter once you are released from

custody. There is no basis, process, or authority for transporting an inmate

to appear before a grand jury. The system has to balance your interest in

providing information against the integrity of the correctional system. You

can do exactly what you are trying to do by providing your information to

the District Attorney through letters, interviews, and depositions.

Mr. Willis filed a motion to strike the State’s response on August 11, 2017, asserting that

the State lacked standing and that if representation were provided to the Foreperson, it

should be by the Bradley County attorney. The record includes no indication that the trial

court ruled on the motion to strike.1

On October 26, 2017, the trial court entered an order dismissing Mr. Willis’s

petition for writ of mandamus. The court specifically found in relevant part:

This cause came for review on the Petition for Writ of Mandamus

wherein [Mr. Willis] has requested to exercise his “rights” under T.C.A. §

40-12-104 to testify before the Grand Jury. [Mr. Willis] claims to have

knowledge concerning the murder of Samuel Johnson Thomas. [Mr.

Willis] claims to have credible evidence regarding the Samuel Johnson

Thomas [homicide] and official misconduct which has occurred in the

investigation of his murder by the Bradley County Sheriff’s Department.

[Mr. Willis] claims that he tried to provide the evidence to the Bradley

County District Attorney General’s Office and the Bradley County

Sheriff’s Department, both of whom he alleges did not respond to him.

This matter was previously brought to Judge Sandra Donaghy’s attention

pursuant to the petition filed by [Mr. Willis] and apparently, Judge

Donaghy, if the statements of [Mr. Willis] are true, told [Mr. Willis] that

the Grand Jury would allow him to present his evidence once he is released

from custody. Judge Donaghy previously told [Mr. Willis] there is no

basis, process or authority for transporting an inmate to appear before the

Grand Jury.

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We will address the resolution of Mr. Willis’s motion to strike the State’s response in a subsequent

section of this Opinion.

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This Court will further note the Grand Jury has the authority to send

for witnesses.

This Court has read the file sent by [Mr. Willis] to the Chancery

Court for Bradley County, Tennessee. This Court is unable to determine

whether or not the information in this file has been given to the District

Attorney General or to the Grand Jury Foreperson and this Court finds the

documentation provided would allow others to present the same

information to the Grand Jury. [Mr. Willis] alleges there is a federal

investigator who has investigated these facts and has information. That

federal investigator would be allowed to provide the information to the

Grand Jury.

It is also unclear whether [Mr. Willis] is serving a sentence for the

same crime he is wanting to be investigated. [Mr. Willis] has alleged he

has at least one attorney and that attorney could, likewise, appear before

any Grand Jury. This Court will note the statute provides that [Mr. Willis],

may testify before the Grand Jury. This is not mandatory and there are

other venues that could be pursued in this matter.

Therefore the Petition for Writ of Mandamus is hereby dismissed

and a copy of this order will be provided to the District Attorney General’s

Office for such other action as the District [Attorney] deems appropriate.

On November 13, 2017, Mr.Willis filed a notice of appeal with this Court and, on

the same day, a “Motion for Reconsideration of the Writ of Mandamus” with the trial

court. The record contains no disposition of Mr. Willis’s motion for reconsideration. We

note that the Tennessee Rules of Civil Procedure do not authorize motions to reconsider a

trial court order. See Goetz v. Autin, No. W2015-00063-COA-R3-CV, 2016 WL 537818,

at *5 (Tenn. Ct. App. Feb. 10, 2016), perm. app. denied (Tenn. June 24, 2016) (citing

Harris v. Chern, 33 S.W.3d 741, 743 (Tenn. 2000)). Moreover, we determine that

because the notice of appeal was filed on the same day as the motion for reconsideration,

subject matter jurisdiction properly transferred to this Court upon the filing of the notice

of appeal. We therefore discern no error in the trial court’s declining to address the

motion for reconsideration and essentially treating the motion as waived.

II. Issues Presented

Mr. Willis presents five issues on appeal, which we have restated as follows:

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1. Whether the trial court abused its discretion by arbitrarily denying

Mr. Willis’s writ of mandamus.

2. Whether Mr. Willis has a due process right, pursuant to Tennessee

Code Annotated § 40-12-104(a)-(c), to present testimony and other

evidence regarding the homicide of Mr. Thomas and investigation

therein before the Foreperson and two grand jury members of his

choosing; and if so, whether the trial court violated Mr. Willis’s due

process right to present such testimony and other evidence.

3. Whether the trial court clerk and master violated Tennessee Rules of

Civil Procedure 4.01, 4.02, and 5.02 and Mr. Willis’s rights to due

process and court access under the First and Fourteenth

Amendments to the United States Constitution and Article 1,

Sections 8, 14, and 17 of the Tennessee Constitution by declining to

issue and serve a summons upon the Foreperson with a copy of Mr.

Willis’s petition.

4. Whether the trial court violated Rules 1.1, 1.2, and 2.12 of the

Tennessee Supreme Court Rule 10 Code of Judicial Conduct by

failing to properly supervise the trial court clerk and master and by

failing to provide a remedy for the clerk and master’s purported

violations.

5. Whether actions of concealment allegedly committed by the

Foreperson, the Bradley County District Attorney General, and

subordinates of the Bradley County District Attorney General in

relation to the investigation of Mr. Thomas’s homicide violated Mr.

Willis’s rights to due process and court access under the First and

Fourteenth Amendments of the United States Constitution and

Article I, Sections 8, 14, and 17 of the Tennessee Constitution.

The Foreperson presents an additional issue, which we have restated slightly as follows:

6. Whether Mr. Willis’s claims are barred by the principles of res

judicata and collateral estoppel.

III. Standard of Review

Our review of the trial court’s judgment following a non-jury proceeding is de

novo upon the record with a presumption of correctness as to the trial court’s findings of

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fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d);

Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the

evidence to preponderate against the trial court’s findings of fact, the evidence must

support another finding of fact with greater convincing effect.” Wood v. Starko, 197

S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins.

Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions

of law de novo with no presumption of correctness. Hughes v. Metro. Gov’t of Nashville

& Davidson Cty, 340 S.W.3d 352, 360 (Tenn. 2011).

A trial court’s decision concerning whether to grant a writ of mandamus is a

discretionary one. Grant v. Foreperson for Bradley Cty. Grand Jury, No. E2009-01450-

COA-R3-CV, 2010 WL 844912, at *5 (Tenn. Ct. App. Mar. 11, 2010) (“[I]t has long

been settled in Tennessee that the granting of the writ of mandamus, even when the right

thereto is clear, lies in the sound discretion of the court.”). As this Court has explained,

“a trial court will be found to have ‘abused its discretion’ only when it applies an

incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an injustice to

the complaining party.” In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct.

App. 2005), perm. app. denied (Tenn. Mar. 12, 2007) (internal citations omitted).

In reviewing pleadings, we “must give effect to the substance, rather than the form

or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)

(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.

2010)). We note also that pleadings “prepared by pro se litigants untrained in the law

should be measured by less stringent standards than those applied to pleadings prepared

by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568

(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young

v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit

of counsel are “entitled to fair and equal treatment by the courts,” but we “must not

excuse pro se litigants from complying with the same substantive and procedural rules

that represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901,

903 (Tenn. Ct. App. 2003).

IV. Motion to Strike the State’s Response

Although not raised as an issue on appeal by Mr. Willis, we find it necessary at the

outset to address the disposition of Mr. Willis’s motion to strike the State’s response. In

its order, the trial court did not address Mr. Willis’s motion to strike and did not refer to

the State’s response. In his “Motion for Reconsideration,” Mr. Willis argued, inter alia,

that if the trial court had allowed a hearing on the petition, he “would have shown” that

the Foreperson “would be properly represented” by the county attorney. We note that in

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the State’s response, the district attorney general did not give notice of representation of

the Foreperson and that on appeal, the Foreperson is represented by the county attorney.

See, e.g., Cooley v. May, No. M2001-01162-COA-R3-CV, 2001 WL 1660830, at *3

(Tenn. Ct. App. Dec. 28, 2001) (concluding that the district attorney general did not have

standing to file a motion to dismiss a state prisoner’s petition for writ of mandamus

requesting that the county sheriff be required to transfer his sentence credits to the state

department of correction and that the sheriff should be properly represented by the county

attorney).

In this case, the State did not file a motion to dismiss and appears to have filed a

response through the district attorney general as an interested party who, as asserted in

the State’s response, would have the responsibility if Mr. Willis’s petition were granted

“to transport [Mr. Willis] and to bear all the associated costs and security this would

necessitate.” In addition, Mr. Willis, although not naming the district attorney general in

his petition in the instant action, did attach to his motion to transport a copy of his

petition for writ of mandamus styled as a separate action in the criminal court against the

Foreperson and General Crump. He also attached to his petition a copy of the criminal

court petition he had served on the district attorney general’s office in 2014, and he had

previously named General Crump as a respondent to his petition seeking injunctive relief

in federal court. Inasmuch as Mr. Willis had clearly notified the district attorney general

of his intent to seek the relief requested in this action and inasmuch as he has not raised

an issue on appeal regarding the resolution of his motion to strike the State’s response,

we determine any such issue to be waived. See Tenn. R. App. P. 13(b) (“Review

generally will extend only to those issues presented for review.”).

V. Denial of Petition for Writ of Mandamus

Mr. Willis delineates five issues on appeal, all of which relate to what we

determine to be the dispositive issue: whether the trial court abused its discretion by

arbitrarily dismissing Mr. Willis’s petition for a writ of mandamus. Mr. Willis argues

that he has a due process right, pursuant to Tennessee Code Annotated § 40-12-104(a)-

(c), to present testimony and other evidence regarding the homicide of Mr. Thomas and

the related investigation before the Foreperson and two grand jury members of his

choosing. He thereby argues that by dismissing his petition, the trial court violated his

constitutional due process rights, as well as his right to access state courts. Mr. Willis

further argues that the trial court clerk and master violated rules of civil procedure and

Mr. Willis’s due process court access rights by declining to issue and serve a summons

on the Foreperson with Mr. Willis’s petition and that the chancellor violated rules of

judicial conduct and Mr. Willis’s due process and court access rights by failing to

properly supervise the trial court clerk and master in this matter. Upon a thorough review

of the record and applicable authorities, we conclude that Mr. Willis has not established a

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specific and legal right to present evidence to a grand jury panel and, moreover, that

issuing a writ of mandamus to Mr. Willis in this action would manifestly prejudice public

interest. We discern no violation of Mr. Willis’s due process or court access rights and

no abuse of discretion in the trial court’s denial of his petition for writ of mandamus.

The issuance of a writ of mandamus is an extraordinary remedy. State ex rel.

Weaver v. Ayers, 756 S.W.2d 217, 226 (Tenn. 1988). As this Court has previously

explained:

The general rule regarding the issuance of a writ of mandamus is

that the writ is not issued to control or coerce discretionary power by a

board or officer, but will lie to enforce the performance of an official duty

and to compel the exercise of power. State v. Mayor & Aldermen, 184

Tenn. 1, 195 S.W.2d 11 (1946); White’s Creek Tpk. Co. v. Marshall, 61

Tenn. (2 Baxt.) 104 (1872); and Barnhart v. Neisler, 25 Tenn. (6 Hum.)

493 (1846). In determining whether an act is a “ministerial act” for which

mandamus may lie, courts look to whether the law defines the duties to be

performed “with such precision and certainty as to leave nothing to the

exercise of judgement.” Lamb v. State, 207 Tenn. 159, 338 S.W.2d 584,

586 (1960) (quoting C.J.S. Mandamus *sec 63, page 101). Where the duty

involves the exercise of discretion or judgement the act is discretionary. Id.

A discretionary act, which will not support the issuance of a mandamus to

compel performance, is defined as one done by an official who has lawful

authority to determine whether or not he will perform the act. Bradley v.

State ex rel. Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969).

For an act to be enforced by a writ of mandamus, the

act must be purely “ministerial.” Peerless Construction Co.

v. Bass, 158 Tenn. 518, 520, 14 S.W.2d 732 (1929). If the

right to have the act performed is doubtful, the right must be

first established in some other form of action. Mandamus is a

summary remedy, extraordinary in its nature, and to be

applied only when a right has been clearly established.

Peerless, 14 S.W.2d at 733. The writ of mandamus will not

lie to control official judgment or discretion, but it is the

proper remedy where the proven facts show a clear and

specific legal right to be enforced, or a duty which ought to be

and can be performed. State ex rel. Weaver v. Ayers, 756

S.W.2d 217, 221 (Tenn. 1988), citing State ex rel. Ragsdale v.

Sandefur, 215 Tenn. 690, 696, 389 S.W.2d 266, 269 (1965).

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Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn. Ct. App. 1990).

Furthermore, a mandamus will not lie where a right is doubtful. State ex

rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988).

Generally, where a public official has any discretion concerning the

doing of an act, the issuance of a mandamus is not available. Davis v.

Fentress County Bd. Of Educ., 218 Tenn. 280, 402 S.W.2d 873 (1966).

Where the exercise of judgment or discretion is required, he may be

compelled by the issuance of a mandamus to perform the duty, however his

judgment regarding the details in the performance of the duty are to be left

unfettered. Blair v. State ex rel. Watts, 555 S.W.2d 709 (Tenn. 1977).

Where an official has the duty to do an act only after making

determinations, evaluations or judgments, a w[r]it of mandamus will not lie

to do the act in any particular way. Seagle-Paddock Pools of Memphis, Inc.

v. Benson, 503 S.W.2d 93 (Tenn. 1973). A court will not substitute its

judgment for that of an official vested with discretion unless the official has

clearly acted arbitrarily and without regard to his duty in the exercise of that

discretion. See State v. Mayor & Aldermen, 184 Tenn. 1, 195 S.W.2d 11,

13 (1946).

Tusant v. City of Memphis, 56 S.W.3d 10, 18-19 (Tenn. Ct. App. 2001), perm. app.

denied (Tenn. Feb. 6, 2001).

Regarding due process, our Supreme Court has explained:

Both the United States and Tennessee Constitutions protect the right

to due process of law. Section 1 of the Fourteenth Amendment to the

United States Constitution provides, “No State shall make or enforce any

law which . . . deprive[s] any person of life, liberty, or property, without

due process of law . . . .” Article I, section 8 of the Tennessee Constitution

states, “[N]o man shall be taken or imprisoned, or disseized of his freehold,

liberties or privileges, or outlawed, or exiled, or in any manner destroyed or

deprived of his life, liberty or property, but by the judgment of his peers, or

the law of the land.” We have determined that this provision of the

Tennessee Constitution is “synonymous” with the Due Process Clause of

the Fourteenth Amendment. Gallaher [v. Elam ], 104 S.W.3d [455,] 463

[(Tenn. 2003)] (citing Riggs [v. Burson ], 941 S.W.2d [44,] 51 [(Tenn.

1997)]).

Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 715 (Tenn. 2017). As to state

court access, Article I, Section 17 of the Tennessee Constitution provides:

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That all courts shall be open; and every man, for an injury done him in his

lands, goods, person or reputation, shall have remedy by due course of law,

and right and justice administered without sale, denial, or delay. Suits may

be brought against the State in such manner and in such courts as the

Legislature may by law direct.

In his petition for writ of mandamus, Mr. Willis requested that the trial court order

the Foreperson to meet with him and allow him to provide evidence related to the murder

of Mr. Thomas and investigation of that murder. In his subsequent motion for transport

and petition for writ of habeas corpus ad testificandum, Mr. Willis requested that he be

transported to testify before the grand jury. As a first step in determining whether the

remedy of a writ of mandamus is appropriate, we must determine whether the statute at

issue “establishes a clear duty to perform a ministerial task” on the part of the

Foreperson. See Tenn. Cmty. Orgs. v. Tenn. Dep’t of Fin. & Admin., No. M2008-02154-

COA-R3-CV, 2009 WL 2393109, at *7 (Tenn. Ct. App. Aug. 3, 2009). In this case, we

must therefore determine whether the statute upon which Mr. Willis relies to assert his

right, Tennessee Code Annotated § 40-12-104, establishes a clear duty on the part of the

Foreperson, the sole respondent named in the petition, to perform the task requested and,

if so, whether that task is ministerial in nature.

When interpreting statutes, we adhere to the following longstanding principles:

When dealing with statutory interpretation, well-defined precepts apply.

Our primary objective is to carry out legislative intent without broadening

or restricting the statute beyond its intended scope. Houghton v. Aramark

Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing

legislative enactments, we presume that every word in a statute has

meaning and purpose and should be given full effect if the obvious

intention of the General Assembly is not violated by so doing. In re

C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we

apply the plain meaning without complicating the task. Eastman Chem.

Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is

simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,

Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is

ambiguous that we may reference the broader statutory scheme, the history

of the legislation, or other sources. Parks v. Tenn. Mun. League Risk

Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a

statute cannot be considered in a vacuum, but “should be construed, if

practicable, so that its component parts are consistent and reasonable.”

Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any

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interpretation of the statute that “would render one section of the act

repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of

Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must

presume that the General Assembly was aware of any prior enactments at

the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926

(Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

The statute at issue, Tennessee Code Annotated § 40-12-104, provides in pertinent

part:

(a) Any person having knowledge or proof of the commission of a

public offense triable or indictable in the county may testify before

the grand jury.

(b) The person having knowledge or proof shall appear before the

foreman. The person may also submit the sworn affidavits of others

whose testimony the person wishes to have considered.

(c) The person shall designate two (2) grand jurors who shall, with the

foreman, comprise a panel to determine whether the knowledge

warrants investigation by the grand jury. The panel may consult the

district attorney general or the court for guidance in making its

determination. The majority decision of the panel shall be final and

shall be promptly communicated to the person along with reasons

for the action taken.

(Emphasis added.)

The trial court in its order referenced the use of the discretionary auxiliary verb,

“may,” in subsection -104(a) in determining that the provision did not mandate that the

potential witness testify before the grand jury. See, e.g., Bellamy v. Cracker Barrel Old

Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (explaining that in contrast to the

use of “may,” “‘[w]hen ‘shall’ is used . . . it is ordinarily construed as being mandatory

and not discretionary’” (quoting Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)));

Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 194 (Tenn. Ct. App. 2016), perm.

app. denied (Tenn. Dec. 15, 2016) (“The provision, however, employs the discretionary

auxiliary verb, ‘may,’ and therefore does not require that a party wishing to mediate an

initial decision demand such mediation within thirty days.”). In his interpretation of the

statute, Mr. Willis instead emphasizes the use of the mandatory auxiliary verb, “shall,” in

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subsections -104(b) and -104(c), as underlined above, to conflate a portion of subsection -

104(a) with -104(b)-(c) and essentially argue that the statute provides in pertinent part:

Any person having knowledge or proof of the commission of a public

offense triable or indictable in the county . . . .

. . . shall appear before the foreman. . . .

[and] shall designate two (2) grand jurors who shall, with the foreman,

comprise a panel to determine whether the knowledge warrants

investigation by the grand jury.

Mr. Willis thereby argues that his appearance before a grand jury panel comprised of the

Foreperson and two grand jurors of Mr. Willis’s choosing is mandated by Tennessee

Code Annotated § 40-12-104(a)-(c). We disagree.

The plain language and organization of Tennessee Code Annotated § 40-12-104

indicate that subsection -104(a) establishes a person’s discretionary opportunity to testify,

using the discretionary auxiliary verb, “may,” before a grand jury panel. Once it has been

established that such a person is going to testify, subsections -104(b)-(c) then mandate,

using the mandatory auxiliary verb, “shall,” much of the manner in which the testimony

shall be presented, including the witness’s appearance before the Foreperson, the

composition of the grand jury panel, and the finality of the grand jury panel’s decision

regarding whether an investigation is warranted. Mr. Willis has taken out of context the

legislature’s use of “shall” in describing the manner in which testimony shall be

presented in order to assert that a person’s testimony before a grand jury panel is

mandated if the person claims to have “knowledge or proof of the commission of a public

offense triable or indictable in the county.” See Tenn. Code Ann. § 40-12-104(a). We

determine that the unambiguous language of the statute provides that such testimony is

discretionary, not mandatory. See id.; In re Estate of Tanner, 295 S.W.3d 610 at 614

(“When a statute is clear, we apply the plain meaning without complicating the task.”).

In support of his argument that his right to appear before a grand jury panel is

mandatory, Mr. Willis relies in part on an opinion issued by the Tennessee Attorney

General in 1992. Tenn. Op. Atty. Gen. 92-53, 1992 WL 545029 (Sept. 16, 1992). We

note that “although opinions of the Attorney General may be persuasive authority, they

are not controlling.” Beacon4, 514 S.W.3d at 173. However, we do afford such opinions

“‘considerable deference,’” particularly because “‘government officials rely upon them

for guidance.’” See id. (quoting State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995)).

When questioned regarding whether “potential defendants” could be prohibited from

testifying before a grand jury, the attorney general opined that both a “court authorized

13

by law to charge the grand jury” and the district attorney general were “without authority

to prohibit potential defendants from appearing and giving evidence before the grand

jury.” Tenn. Op. Atty. Gen. 92-53, 1992 WL 545029, at *1. The attorney general

explained in relevant part:

Rule 6(j), Tenn. R. Crim. P., which grants without limitation power to the

grand jury to send for witnesses, to issue process, and to punish for failure

to appear, and Tenn. Code Ann. § 40-12-104, which allows any person

having knowledge or proof of the commission of a public offense triable or

indictable in his county to testify before the grand jury upon proper

application, appear to be entirely consistent with the case law. No rule or

statute either expressly or impliedly allows a court to preclude persons from

testifying before a grand jury.

Id. (emphasis added). Setting aside the question of whether Mr. Willis is a “potential

defendant,” which is not at issue here, Mr. Willis again obfuscates mandatory language

(the court is without authority to prohibit individuals from testifying) with discretionary

language (the statute allows testimony). See id.

Mr. Willis also relies on a decision rendered by our Supreme Court that is cited in

the 1992 attorney general’s opinion, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d

274 (Tenn. 1980). In Watts, a police officer was suspended from duty when he

disregarded a written directive from the chief of police denying the officer’s request to

testify before a grand jury concerning a case that had been previously dismissed in court

due to a technical error. Id. at 279-80. Upon appeal to the applicable civil service board,

circuit court, this Court, and the Tennessee Supreme Court, the officer’s suspension was

upheld at each level. Id. at 276. The High Court explained:

We agree with the statement that no one may prevent a person from

appearing before a grand jury. Indeed, it is his duty to do so if he has

evidence of a crime. The District Attorney may ask for an indictment, or

the grand jury may act by presentment.

However, we are of the opinion that there is material and substantial

evidence that the act of the plaintiff’s appearance before the grand jury is

not the reason that the plaintiff was suspended indefinitely. We think that

there is material, substantial and convincing evidence that the real issue was

whether the plaintiff was subject to obedience to orders of his superiors.

What was demanded of the plaintiff was that he handle his investigation in

accordance with official channels, police policies and procedures and in

cooperation with the Detective Division.

14

Id. at 282-83. In referencing the language that “no one may prevent a person from

appearing before a grand jury” and that it is the person’s “duty to do so if he has evidence

of a crime,” the attorney general acknowledged that the language constituted dicta in the

context of Watts. Tenn. Atty. Gen. Op., 1992 WL 545029, at *1 (quoting Watts, 606

S.W.2d at 282-83). More importantly, the language is again mandatory in terms of the

lack of authority to prevent testimony but discretionary in terms of the potential

defendant’s or witness’s opportunity and civic duty to testify. Mr. Willis’s reliance on

Watts and on the attorney general’s 1992 opinion in support of his alleged mandatory

right to testify before a grand jury panel is unavailing.

Furthermore, nothing in the statute mandates that the Foreperson must travel to

meet with an incarcerated individual who claims to have knowledge or proof of a crime

or that the Foreperson must cause an incarcerated individual to be transported to appear

before the grand jury. A writ of mandamus is inappropriate in this case, first and

foremost, because Tennessee Code Annotated § 40-12-104 does not establish a clear and

specific duty on the part of the Foreperson to perform the task requested by Mr. Willis,

specifically to meet with Mr. Willis in prison or to cause Mr. Willis to be transported to

testify before a grand jury panel.

In addition, much of the manner in which the Foreperson, in collaboration with the

grand jury panel, is to determine whether the potential witness’s knowledge warrants

investigation by the grand jury is discretionary. See Tenn. Code Ann. § 40-12-104(b)-(c).

We note that Tennessee Rule of Criminal Procedure 6(j)(1) provides that “[t]he grand

jury shall send for witnesses whenever the grand jury or any member suspects that an

indictable offense has been committed” (emphasis added). Thus, the grand jury has the

authority to send for witnesses upon its own volition but is not required to transport an

inmate who claims to have information regarding a crime. See Tenn. R. Crim. P. 6(j)(1).

We do not find the task requested by Mr. Willis to be purely ministerial in nature. See

Grant, 2010 WL 844912, at *5 (“Mandamus is a summary remedy, extraordinary in its

nature, and to be applied only when a right has been clearly established, so that there

remains only a positive ministerial duty to be performed, and it will not lie when the

necessity or propriety of acting is a matter of discretion.” (quoting Peerless Constr. Co. v.

Bass, 14 S.W.2d 732, 733 (Tenn. 1932))). Moreover, we find no indication in the record

that the Foreperson acted arbitrarily or without regard to her duty such that the trial court

would have been warranted in substituting the court’s judgment for that of the Foreperson

by issuing a writ of mandamus. See Tusant, 56 S.W.3d at 18-19 (“A court will not

substitute its judgment for that of an official vested with discretion unless the official has

clearly acted arbitrarily and without regard to his duty in the exercise of that discretion.”).

15

Finally, even if Mr. Willis could assert a clear and specific right to testify and

present evidence before a grand jury panel, a writ of mandamus would not be a proper

remedy if granting the writ would manifestly prejudice public interest. See Grant, 2010

WL 844912, at *5 (“Where the court can see, upon a review of the whole case, that

public interests will be prejudiced and hindered, the writ will be denied.”). In Grant, a

state inmate filed a petition for a writ of mandamus, seeking to have the trial court

compel the county grand jury foreperson “to inquire into his allegations” against a law

enforcement officer investigating the crime that led to the petitioner’s arrest and

conviction. Id. at *3. In affirming the trial court’s denial of the petition, this Court first

determined that the petitioner had failed to establish a “specific and legal right” to the

writ of mandamus. Id. at *5. This Court explained:

At this time, [the petitioner’s] specific and legal right cannot be established.

A writ of mandamus is not warranted on this record. However, even if [the

petitioner] could assert a clear and specific right to submit evidence to a

grand jury panel, the trial court below properly denied issuing a writ of

mandamus because it would manifestly prejudice public interest. As noted

by the State in its brief, no doubt every defendant serving a sentence

because of a conviction or plea has deep resentment toward the law

enforcement officers who investigated their crimes. To require grand jury

forepersons to convene panels and transport convicted defendants to raise

any meritless allegations they please against law enforcement personnel

would expend scarce resources and would establish a costly precedent

clearly prejudicial to the public interest.

Id.

In response to the Foreperson’s partial reliance on Grant, Mr. Willis argues that

the facts of this action are distinguishable because he seeks to present testimony and other

evidence concerning a crime and investigation other than the crimes for which he has

been convicted. We determine this to be a distinction without a legal difference. As

explained above, Mr. Willis has failed to establish a specific and legal right to the relief

he requests. Moreover, upon our thorough review of the record and applicable

authorities, we determine that issuing a writ of mandamus in this case to an individual

with what the federal district court has described as the “unique circumstances” of being

a “convicted double murderer, imprisoned on death row in a state correctional facility,

who desires to give evidence, even perhaps to testify, before a grand jury investigating

another murder,” see Willis v. Crump, 2015 WL 8781215, at *4, would manifestly

prejudice public interest.

16

Throughout his pleadings before the trial court and his briefs on appeal, Mr. Willis

describes alleged facts that cross over from the murder of Mr. Thomas to the murders for

which Mr. Willis was convicted and to the law enforcement investigation of the crimes

for which Mr. Willis was convicted. For instance, in his July 2016 letter to the state

attorney general, Mr. Willis stated that he “discovered the same people responsible for

the murders [he] stand[s] convicted and sentenced to death for [a]re also responsible for

the unsolved murder of Mr. Samuel Johnson Thomas.” One need only review the

“Requested Relief” in the conclusion of Mr. Willis’s principal brief on appeal to note this

cross-over from Mr. Thomas’s murder into Mr. Willis’s convictions. Mr. Willis requests,

inter alia, that this Court make “a finding of facts that the State is holding Mr. Willis on

pretext of a conviction” and that “Mr. Willis is being held illegally.”2

We agree with the trial court and the Foreperson that to the extent that Mr. Willis

seeks to collaterally attack his own criminal convictions, allowing him to do so would be

manifestly against public interest. We also find this Court’s conclusion in Grant to be

applicable in that to the extent that Mr. Willis seeks to assert allegations against the law

enforcement personnel who investigated the crimes for which he was convicted, allowing

him to do so would “expend scarce resources and would establish a costly precedent

clearly prejudicial to the public interest.” See Grant, 2010 WL 844912, at *5.

Upon careful review, we determine that the trial court did not abuse its discretion

by denying Mr. Willis’s petition for writ of mandamus because Mr. Willis does not have

a clear and specific right to the remedy he seeks, nothing in the record indicates that the

Foreperson acted arbitrarily in the performance of her duty, and issuance of the writ

would manifestly prejudice public interest. We further determine, therefore, that the trial

court did not violate Mr. Willis’s constitutional rights to due process and state court

access.

2

On appeal, Mr. Willis has attached to his principal brief two volumes of appendices, containing multiple

documents that were not presented to the trial court as part of this action and many documents that appear

to be from the proceedings leading to Mr. Willis’s criminal convictions. Mr. Willis requests that this

Court take judicial notice of “facts contained in” these documents pursuant to Tennessee Rule of

Evidence 201. Inasmuch as the documents attached by Mr. Willis do not constitute the kinds of facts for

which this Court will take judicial notice, we decline to do so and determine that Mr. Willis’s appendices

cannot be considered on appeal. See Tenn. R. Evid. 201(b) (“A judicially noticed fact must be one not

subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.”); Tenn. R. App. P. 13(c) (providing that state appellate courts “may

consider those facts established by the evidence in the trial court and set forth in the record and any

additional facts that may be judicially noticed or are considered pursuant to Rule 14 [regarding post-

judgment facts].”). To the extent that Mr. Willis has requested that this Court take mandatory judicial

notice of law, pursuant to Tennessee Rule of Evidence 202(a), we note that such a request is unnecessary

because this Court considers all applicable law.

17

V. Remaining Issues

Mr. Willis has raised additional issues regarding (1) the trial court clerk and

master’s alleged violations of rules of civil procedure and Mr. Willis’s constitutional

rights, (2) the chancellor’s alleged violations of rules of judicial conduct and Mr. Willis’s

constitutional rights in the court’s supervisory role over the clerk and master, and (3) the

Foreperson’s and district attorney general’s alleged “actions of concealment” concerning

the investigation into Mr. Thomas’s murder and alleged violation of Mr. Willis’s

constitutional rights in their opposition to Mr. Willis’s requested grand jury testimony. In

addition, the Foreperson has raised an issue regarding whether Mr. Willis’s petition for a

writ of mandamus is barred by principles of res judicata and collateral estoppel in

consideration of the federal district court’s denial of injunctive relief in Willis v. Crump,

2015 WL 8781215, and the statements made by Mr. Willis in this case that appear to

collaterally attack his criminal convictions.3 Having determined that Mr. Willis was

unable to establish a specific and legal right to the writ of mandamus he requested and

that his constitutional rights were not violated by the trial court’s denial of the writ, we

conclude that these determinations are dispositive. The remaining issues raised on appeal

are therefore pretermitted as moot.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment denying Mr.

Willis’s petition for a writ of mandamus. This case is remanded to the trial court,

pursuant to applicable law, for collection of costs assessed below. The costs on appeal

are assessed against the appellant, Howard Hawk Willis.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

3

“The doctrine of res judicata or claim preclusion bars a second suit between the same parties or their

privies on the same claim with respect to all issues which were, or could have been, litigated in the former

suit.” Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). “Collateral estoppel is an issue-preclusion

doctrine developed by the courts” that “bar[s] ‘the same parties or their privies from relitigating in a later

proceeding legal or factual issues that were actually raised and necessarily determined in an earlier

proceeding.’” Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107 (Tenn. 2016) (quoting Mullins v. State,

294 S.W.3d 529, 534 (Tenn. 2009)) (additional internal citations omitted).

18