State of Tennessee v. Leonard Singer

10/11/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 24, 2019

STATE OF TENNESSEE v. LEONARD SINGER

Appeal from the Circuit Court for Rutherford County

No. F-74991 David M. Bragg, Judge

___________________________________

No. M2018-01936-CCA-R3-CD

___________________________________

A Rutherford County Circuit Court jury convicted the Defendant-Appellant, Leonard

Singer, of tampering with evidence, simple possession of cocaine, and possession of drug

paraphernalia. See Tenn. Code Ann. §§ 39-16-503, 39-17-418, 39-17-425. On appeal,

Singer argues: (1) he received ineffective assistance of counsel from his preliminary

hearing through trial; (2) his confession to ingesting a marijuana joint was coerced; (3)

his arrest was not supported by probable cause and the police did not have authority to

search his person or his truck; (4) the State withheld exculpatory evidence; (5) his

indictment was defective; (6) the police, his attorneys, the prosecutors, and the trial judge

conspired against him by making materially false statements and representations and by

concealing and fabricating government documents; and (7) the Tennessee Board of

Probation and Parole violated Code section 40-35-207 and violated his due process

rights. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Leonard Singer, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant

Attorney General; Jennings H. Jones, District Attorney General; and Shawn Puckett and

Matthew Westmoreland, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

On January 5, 2016, Singer was indicted for tampering with evidence, simple

possession of cocaine, possession of drug paraphernalia, and resisting arrest. He was

appointed a public defender to represent him.

First Motion to Suppress. On June 21, 2016, Singer, through counsel, filed a

motion to suppress, arguing there was no valid basis for his stop. At the May 6, 2016

suppression hearing, Officer Aaron Price of the Murfreesboro Police Department testified

that he stopped Singer on October 27, 2015 for a light law violation because Singer failed

to activate his headlights when it was raining and dark outside. Officer Price said that

when he saw Singer driving toward him without his headlights on, he immediately turned

around, activated his blue lights, and began following him. Despite the actions taken by

Officer Price, Singer did not stop his truck and continued to drive for 100 to 200 yards

into a parking lot. During this time, Officer Price said Singer “lifted up out of his seat,

appeared to be digging under his seat[, and] was digging in his center console.” Because

Officer Price was concerned that Singer was concealing something or retrieving a

weapon, he called for backup, and Singer eventually came to a stop in the parking lot.

When Officer Price approached the truck, Singer “turned and looked at [him] but

continued to go through the center console area.”

Officer Price then asked Singer “what he was doing,” and Singer responded that

he was looking for his wallet. However, he could see that Singer was holding his wallet

in his left hand. When Officer Price informed Singer that he was holding his wallet,

Singer continued to dig in the area of his center console. At that point, Officer Price

became “very concerned.” He grabbed Singer’s left wrist, leaned into Singer’s truck, and

ordered Singer to exit his vehicle. Singer then mentioned something about his cigarettes,

which Officer Price had seen next to the center console, and Singer continued to dig

through his center console. When Officer Price ordered him to get out of his truck again

and attempted to pull him out of his truck, Singer resisted, and Officer Price placed his

arms around Singer and pulled him out of his truck. Officer Price noticed Singer

attempting to hide something in his right hand, and Officer Price took Singer to the

ground. As they hit the ground, Singer landed face-down, and Officer Price ended up on

top of Singer’s back and observed a crack pipe roll out from underneath Singer. Officer

Price also observed Singer chewing on something. When Officer Price attempted to pull

both of Singer’s hands behind his back, Singer refused to cooperate.

Officer Price said that although he gave Singer verbal commands to stop, relax,

and put his hands behind his back, Singer refused to do these things, and they continued

to struggle for three to four minutes until two other officers arrived on the scene. During

this struggle, Officer Price repeatedly ordered Singer to spit out whatever he was

chewing, and Singer finally spit out a bag. Officer Price said this bag was “like paper

rolled up with . . . cooking wrap or something, a clear wrap wrapped around it.” Despite

-2-

Officer Price’s repeated orders to spit out whatever he had in his mouth, Singer continued

to chew on something. Officer Price then saw Singer spit out a second bag that was

“wrapped the exact same way,” and noticed that Singer “continu[ed] to chew on

something.”

Although Officer Price did not know what Singer was chewing, he did not want

him swallowing it because it was obvious that Singer did not want him to know what it

was. Officer Price said that once Singer was arrested, he asked Officer Palmer Gibbs to

advise Singer of his Miranda rights, which Officer Gibbs did before interviewing Singer

and accompanying him to the hospital. Thereafter, Officer Price processed the scene and

found the crack pipe that had fallen out of Singer’s truck during the struggle. He and

other officers also found crack cocaine inside a rolled up dollar bill that was hidden

above the driver’s side window of Singer’s truck, a Brillo pad in Singer’s center console,

and a homemade crack pipe made of tinfoil as well as a roll of tinfoil inside Singer’s

truck. After Singer was released from the hospital, Officer Price encountered him as he

was being booked, and Singer admitted that he had been chewing on a “marijuana joint.”

Officer Price acknowledged that prior to stopping Singer, his own windshield

wipers, as verified by the dashboard camera in his patrol car, were on the intermittent

setting. He stated that when he first encountered Singer, Singer had pulled out of the

dead end area of North Maple, a known drug area, and Singer did not have his headlights

activated. He also said that although he was familiar with many of the vehicles driven by

people who lived in that particular area, he had never seen Singer’s truck before. Officer

Price admitted that Singer was not speeding or swerving before he initiated the stop.

The video recording of Singer’s stop was admitted as an exhibit at the suppression

hearing and was viewed by the trial court. This recording showed that it was raining and

dark at the time of the stop, that Singer did not have his taillights activated, and that

Singer immediately moved into the right lane in an effort to evade Officer Price’s patrol

car that had pulled in behind him. Once Officer Price initiated Singer’s stop by turning

on his blue lights, Singer activated his brake lights and turned into an Office Depot

parking lot. Singer continued through this parking lot without stopping, and Officer Price

asked for backup because Singer failed to stop and because Singer appeared to be

“digging around” for something in his truck. Officer Price activated his siren, and Singer

finally stopped his truck.

When Officer Price approached the driver’s side of the truck, he asked Singer,

“What are we doing?” He then repeated this question and told Singer to “hop out,” and

Singer replied that he was getting his wallet. Officer Price told Singer that he already had

his wallet in his hand and that he needed to exit his truck. When Singer said that he was

getting his cigarettes, a struggle ensued between Officer Price and Singer. While the

-3-

audio from this recording showed that this struggle occurred, the video portion of the

recording did not depict the struggle because Singer’s truck blocked the camera’s view.

During this struggle, Officer Price ordered Singer several times to relax and to place his

hands behind his back. He also repeatedly ordered Singer to “spit it out.”

The recording shows that two other officers appeared at the scene and ran to the

driver’s side of Singer’s truck, where they were out of the camera’s view. One of the

officers can be heard asking if another officer had Singer’s arm, and an officer can be

heard ordering Singer to stand up. During this struggle, Singer dramatically and

repeatedly screamed, “My back,” and one of the officers commented that Singer had spit

something out of his mouth. Additional officers arrived at the scene, who noted that a

pipe had been found inside Singer’s truck and that a second pipe had been found outside

his truck on the ground.

At the conclusion of the suppression hearing, the trial court denied Singer’s

motion on the basis that Officer Price’s stop of Singer was valid. The court stated that in

addition to considering Officer Price’s testimony and the video recording from the stop, it

had also reviewed Code section 55-9-406(b)(1), which requires a driver’s headlights to be

activated “during any time when rain, mist, or other precipitation, including snow,

necessitates the constant use of windshield wipers by motorists.” The court found that it

was raining at the time of Singer’s stop and that Officer Price’s “windshield wipers were

on constantly.” After determining that the weather conditions that day required drivers to

have their headlights activated, the court held that Officer Price’s stop of Singer was

valid.

On August 16, 2016, the public defender representing Singer filed a motion to

withdraw after Singer lodged a formal criminal complaint against her alleging that she

had “act[ed] in concert with the prosecutor and other persons to deprive [him] of his

rights and due process,” that she “ha[d] failed to file legal claims on his behalf,” that she

“ha[d] concealed exculpatory evidence,” that she “ha[d] edited the video of the traffic

stop,” and that she had provided “unprofessional, inadequate” representation.

On August 19, 2016, the trial court appointed trial counsel1 to represent Singer.

However, on November 18, 2016, the court appointed successor trial counsel to represent

Singer. On April 17, 2017, successor trial counsel filed his first motion to withdraw.

Second Motion to Suppress. On May 8, 2017, Singer, with the assistance of

successor trial counsel, filed a second motion to suppress, arguing that any evidence

1

The record does not include a motion to withdraw or accompanying order regarding trial

counsel’s withdrawal from Singer’s case.

-4-

associated with his alleged confession should be suppressed because he did not give a

knowing, voluntary, and intelligent waiver of his Miranda rights. Singer specifically

claimed that his waiver was involuntary because he had suffered a back injury, his

confession had been secretly recorded, and he had been threatened several times that his

stomach would be pumped if he did not “advise the interrogating officer satisfactorily”

about what he had ingested.

At the May 15, 2017 suppression hearing, Officer Gibbs of the Murfreesboro

Police Department testified that he encountered Singer at the scene on October 27, 2015,

after Officer Price called for backup. Shortly after arriving at the scene, Officer Gibbs

advised Singer of his Miranda rights. He acknowledged that Singer had complained

several times about his back hurting while at the scene. Officer Gibbs acknowledged

telling Singer that, for medical reasons, he needed to disclose what he had consumed or

his stomach might be pumped; however, he denied giving Singer this information in a

threatening manner. He explained that he told Singer this because “[d]epending on the

type of drug and the amount, [the person] could overdose and die.” Officer Gibbs said he

later accompanied Singer to the hospital, where he made two video recordings of Singer

on his cell phone. He acknowledged that Singer seemed to be in a fair amount of distress

about his back when he arrived at the hospital and was confused about why he had been

arrested. However, Officer Gibbs stated that Singer was able to answer most, if not all,

of his questions. In the first video, Singer falsely told Officer Gibbs that there were drugs

in his anus, and Officer Gibbs accused Singer of giving him this false information as a

way to divert his attention from what Singer was chewing. In the second video, Singer

admitted to Officer Gibbs that he ingested a partially smoked marijuana joint. While

Officer Gibbs acknowledged that Singer was calmer during the second video where he

made the admission, he could not explain the reason for Singer’s change in demeanor,

other than he had talked with Singer for a while, which seemed to calm him. Officer

Gibbs could not recall whether Singer had been given any medication by the hospital

staff prior to admitting that he ingested the marijuana joint. He acknowledged that he did

not give Singer his Miranda rights again on the way to the hospital or at the hospital

before Singer gave this admission. While he acknowledged that Singer initially told him

several times that he had not consumed any drugs, Officer Gibbs noted that “there was an

odor of marijuana” coming from Singer’s person, which was noticed by several other

officers. He also said Singer had green residue in his mouth and on his teeth from

whatever he had been chewing, which indicated that Singer had consumed the marijuana

“very recently.” Officer Gibbs stated that Singer was obviously chewing on something

both at the scene and during the ambulance ride to the hospital.

The video recording of Officer Gibbs’ conversation with Singer at the scene was

played for the court. In it, Officer Gibbs advised Singer of his Miranda rights, and Singer

stated that he was willing to talk to him. The video recordings that Officer Gibbs made

-5-

of Singer at the hospital were also played for the court. Officer Price also testified at this

hearing and provided similar testimony to what he had given at the earlier suppression

hearing.

At the conclusion of this hearing, the trial court stated that it had considered the

testimony presented and had reviewed the relevant videos showing Singer at the scene

and at the hospital. The court found that Singer had been given his Miranda rights at the

scene and that from the time of Singer’s initial stop to the time Singer confessed to

ingesting the marijuana joint, he was able to engage in conversation with all of the

officers present. The court then held that because all of Singer’s statements “were made

willingly and voluntarily,” they would not be suppressed.

On March 14, 2018, successor trial counsel filed a second motion to withdraw,

asserting that Singer insisted on taking action that the attorney considered repugnant and

that Singer himself was so repugnant to successor trial counsel that it likely impaired the

attorney-client relationship and counsel’s ability to represent Singer. Thereafter, the trial

court granted the motion to withdraw on the condition that successor trial counsel remain

as “elbow counsel” for Singer. On April 18, 2018, and May 3, 2018, Singer filed two pro

se motions to dismiss, alleging in part that his indictment was defective and that the court

was without jurisdiction because the count charging him with tampering with the

evidence pursuant to Code section 39-16-503 used the word “substance.”

Trial. At the jury trial on July 30, 2018, Singer represented himself with

successor trial counsel acting as “elbow counsel.” Officer Price provided testimony

similar to the testimony he had provided at the suppression hearings. In addition, Officer

Price asserted that he pulled Singer out of his truck because he was concerned that Singer

was looking for a weapon. As he and Singer fell to the ground, some items also fell to

the ground, including a glass pipe used to smoke crack cocaine. Officer Price said that

despite giving Singer repeated commands, Singer continued to try to stand up while

Officer Price was on his back. Officer Price observed that Singer was continuously

chewing on something, and when he told him to spit it out because he was concerned that

Singer had ingested something that could hurt him, Singer refused. Officer Price then

tried to pull Singer’s arms behind his back, but Singer refused to cooperate. They

continued to struggle until two other officers arrived on the scene, and then all three

officers worked together to place Singer’s hands behind his back so they could arrest

him.

Officer Price said that once Singer was handcuffed, Singer’s person was searched

incident to his arrest. He said that during the entirety of the struggle and even after he

was placed in custody, Singer continued to chew on something, despite his repeated

commands for Singer to spit it out. Officer Price also smelled the odor of raw marijuana

-6-

coming from Singer’s mouth and noted that Singer’s tongue and mouth looked green. He

said that other officers at the scene also commented that they smelled marijuana on

Singer’s breath. Officer Price stated that although Singer eventually spit out two packs of

gauze wrapped in cellophane, he continued to chew something. He asserted that he did

not collect these gauze packs because they did not contain drugs. A video recording of

Singer’s stop was played for the jury.

Officer Price and other officers then searched Singer’s truck and found a rolled

dollar bill containing cocaine wedged in the frame of the driver’s side door. They also

found a tinfoil crack pipe and a Brillo pad, which acts as a filter for crack pipes, in the

center console of Singer’s truck.

Officer Price observed Singer again when he was being booked at the jail. During

the booking process, Singer admitted to Officer Price that he had been chewing on a

partially smoked marijuana joint at the time of the stop.

Officer Gibbs testified that when he first arrived at the scene, Singer was standing

next to his truck and complaining that his back hurt. He smelled the odor of marijuana

coming from Singer’s person and observed Singer chewing something. Officer Gibbs

advised Singer of his Miranda rights at the scene.

Because Singer had likely ingested drugs and had complained that his back was

hurting, Officer Gibbs accompanied Singer to the hospital. During the ambulance ride,

Singer continued to chew on something. When they arrived at the hospital, Officer Gibbs

observed a green substance on Singer’s tongue and in his teeth. Singer then gave Officer

Gibbs false information that he had placed drugs in his anus. Later, Singer confessed to

ingesting a small piece of marijuana from a joint. A video recording of Singer’s

confession was played for the jury. Officer Gibbs said he asked Singer how much

marijuana he had consumed so he could advise the medical staff, who were deciding

what procedures would be necessary. He asserted that although he allowed Singer to use

his cell phone while at the hospital, he never made any direct or implied promises to

Singer in exchange for Singer’s confession to ingesting the marijuana. When Singer was

cleared by the medical staff, he walked out of the hospital.

Special Agent Laura Cole, a forensic scientist for the Tennessee Bureau of

Investigation, testified that she tested the white powder that was found on a dollar bill

wedged in the door frame of Singer’s truck. She confirmed that the white powder was

0.04 grams of cocaine.

At the conclusion of trial, Singer was acquitted of resisting arrest but was

convicted of the remaining charges. The trial court then sentenced him as a Range II,

-7-

multiple offender to concurrent sentences of eight years for the tampering with evidence

conviction and eleven months and twenty-nine days for the simple possession of cocaine

and possession of paraphernalia convictions. The court ordered that this effective eight-

year sentence would be served consecutively to Singer’s Texas sentence, for which

Singer was on parole at the time he committed the offenses in this case. The judgments

of conviction for the Tennessee offenses were entered on September 21, 2018.

On October 17, 2018, Singer filed a “Motion in Arrest of Judgment.” In it, he

alleged that the indictment count charging him with tampering with evidence was

defective because it failed to charge an offense; that the statute charging him with

tampering with evidence was void for vagueness; that the state trial court lacked

jurisdiction to hear his case because he had filed a federal civil lawsuit prior to his

criminal trial; that the trial court judge, the district attorney, the prosecutor, and all of the

attorneys who represented him had made “false representations concerning a material

fact;” and that the Tennessee Parole Board failed to conduct a minimal investigation

pursuant to Code section 40-28-106. On October 22, 2018, before the trial court ruled on

this motion, Singer filed a timely notice of appeal.

On December 14, 2018, after Singer filed his notice of appeal, the trial court

entered a written order denying the motion for arrest of judgment.2 In its order, the court

noted that it had previously ruled on a motion to suppress the evidence seized during the

stop of Singer’s vehicle as well as a motion to dismiss the indictment based upon the

same grounds alleged in this motion. The court then held that Singer’s indictment was

not defective because it contained sufficient information to provide Singer with

knowledge of the accusation to which answer is required, to furnish the court with an

adequate basis for entry of a proper judgment, and to protect Singer against double

jeopardy, as required by State v. Hill, 954 S.W.2d 725 (Tenn. 1997).

ANALYSIS

I. Ineffective Assistance of Counsel. Singer argues that he received ineffective

assistance from all the attorneys who represented him from the preliminary hearing

through trial.3 He specifically complains that his attorneys failed to confer with him,

failed to conduct an appropriate investigation and research, failed to obtain evidence in

the State’s possession, failed to discuss strategies and tactical choices, failed to

2

We note that the trial court did not have jurisdiction of Singer’s case at the time it entered its

order denying the “Motion in Arrest of Judgment” because Singer had already filed his notice of appeal.

3

We have reordered Singer’s issues for clarity.

-8-

investigate his civil rights violations that were the subject of his federal lawsuit, failed to

challenge his defective indictment, failed to emphasize Officer Price’s excessive use of

force, failed to provide any case law to support his motions to suppress, failed to confront

the witnesses against him, failed to allow him to present witnesses in his favor, and failed

to challenge his arrest and the search of his person and his truck. Singer contends that

because his attorneys failed to provide constitutionally adequate representation, he failed

to receive a fair trial. The State responds that Singer has waived this issue by never

raising it in the trial court or in a motion for new trial. Waiver notwithstanding, the State

argues that Singer has failed to show that counsel’s performance was deficient or

prejudicial. We conclude that Singer has waived plenary review of this issue and is not

entitled to plain error relief.

Initially, we recognize that while ineffective assistance of counsel claims may be

raised on direct appeal, it is a practice “fraught with peril since it is virtually impossible

to demonstrate prejudice as required without an evidentiary hearing.” State v. Blackmon,

78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citation and internal quotation marks

omitted). This practice is unwise because once an ineffective assistance of counsel claim

is raised and adjudicated on direct appeal, it may be deemed previously determined for

purposes of later post-conviction relief. See Tenn. Code Ann. §§ 40-30-106(h) (“A

ground for relief is previously determined if a court of competent jurisdiction has ruled

on the merits after a full and fair hearing.”), 40-30-106(f) (“If the facts alleged, taken as

true, fail to show that the petitioner is entitled to relief or fail to show that the claims for

relief have not been waived or previously determined, the petition shall be dismissed.”).

Tennessee Rule of Appellate Procedure 3(e) states that all issues for review upon

which a new trial is sought must be raised in a motion for new trial:

[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or

other action committed or occurring during the trial of the case, or other

ground upon which a new trial is sought, unless the same was specifically

stated in a motion for a new trial; otherwise such issues will be treated as

waived.

Tenn. R. App. P. 3(e) (emphases added); see Tenn. R. App. P. 36(a) (“Nothing in this

rule shall be construed as requiring relief be granted to a party responsible for an error or

who failed to take whatever action was reasonably available to prevent or nullify the

harmful effect of an error.”). Singer’s claim that he received ineffectiveness of counsel,

for which the appropriate remedy is a new trial, was not included in a motion for new

trial.

-9-

Accordingly, we conclude that Singer has waived this issue, absent plain error.

The plain error doctrine states that “[w]hen necessary to do substantial justice, an

appellate court may consider an error that has affected the substantial rights of a party at

any time, even though the error was not raised in the motion for a new trial or assigned as

error on appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain error,

“(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a

substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). “[P]lain error must be of such a great magnitude

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal

quotations marks and citations omitted). “It is the accused’s burden to persuade an

appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d

349, 355 (Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he

presence of all five factors must be established by the record before this Court will

recognize the existence of plain error, and complete consideration of all the factors is not

necessary when it is clear from the record that at least one of the factors cannot be

established.” Smith, 24 S.W.3d at 283.

We note that in order to prevail on an ineffective assistance of counsel claim, the

petitioner must establish that (1) his lawyer’s performance was deficient and (2) the

deficient performance prejudiced the defense. Vaughn v. State, 202 S.W.3d 106, 116

(Tenn. 2006) (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.

Washington, 466 U.S. 668, 687 (1984)). A petitioner successfully demonstrates deficient

performance when the petitioner establishes that his attorney’s conduct fell “below an

objective standard of reasonableness under prevailing professional norms.” Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688; Baxter, 523

S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner

establishes “‘a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting

Strickland, 466 U.S. at 694). “Because a petitioner must establish both prongs of the test,

a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief

on the ineffective assistance claim.” Id.

- 10 -

After reviewing the entire appellate record in this case, we conclude that none of

the attorneys who represented Singer were ineffective. Instead, all of Singer’s attorneys

provided representation that far exceeded the objective standard of reasonableness under

prevailing professional norms at each and every stage of the proceedings, despite the fact

that Singer was a difficult, and sometimes impossible, individual to represent.

Accordingly, we can easily conclude that Singer, who failed to even ask for plain error

relief from this court, has failed to establish that a clear and unequivocal rule of law was

breached, that a substantial right of his was adversely affected, or that consideration of

the error was necessary to do substantial justice. Because Singer has failed to establish

all five of the required factors, he is not entitled to plain error relief. See Smith, 24

S.W.3d at 282.

II. Coerced Confession. Singer also argues that his confession to consuming a

marijuana joint was coerced. He claims that Officer Gibbs secretly recorded his

confession and that Officer Price’s excessive use of force at the stop made his later

confession to ingesting the marijuana joint involuntary. In response, the State contends

that Singer waived this issue by failing to raise it at his suppression hearing or in the

motion to arrest judgment that he filed following his conviction, see Tenn. R. App. P.

36(a), and by failing to provide any facts to support his contention, see Tenn. Ct. Crim.

App. R. 10(b). Waiver notwithstanding, the State asserts that Singer had been properly

advised of his Miranda rights at the time he gave his statement to Officer Gibbs and that

the reason Officer Gibbs asked Singer what he had ingested was in order to obtain

appropriate medical care for him. Once again, we conclude that Singer has waived

plenary review of this issue and is not entitled to plain error relief.

Although Singer properly raised the claim that his confession was coerced in his

second suppression motion, he did not include this issue in a motion for new trial. See

Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a). Accordingly, we conclude that Singer has

waived this issue, absent plain error. See Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a);

Smith, 24 S.W.3d at 282.

Because “coerced confessions are inherently unreliable,” only voluntary

confessions are admissible. State v. Climer, 400 S.W.3d 537, 567 (Tenn. 2013). In order

for a statement to be voluntary, it “‘must not be extracted by any sort of threats or

violence, nor obtained by any direct or implied promises, however slight, nor by the

exertion of any improper influence.’” State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980)

(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)).

Whether a confession is involuntary is a question of fact. State v. Willis, 496

S.W.3d 653, 695 (Tenn. 2016) (citing State v. Sanders, 452 S.W.3d 300, 305 (Tenn.

2014)). The State has the burden of establishing the voluntariness of a confession by a

- 11 -

preponderance of the evidence. Id. (citing Sanders, 452 S.W.3d at 305). “The test of

voluntariness for confessions under article I, § 9 of the Tennessee Constitution is broader

and more protective of individual rights than the test of voluntariness under the Fifth

Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996); State v. Freeland, 451

S.W.3d 791, 815 (Tenn. 2014).

“The due process voluntariness test is distinct from Miranda.” State v. Davidson,

509 S.W.3d 156, 189 (Tenn. 2016) (citing Dickerson v. United States, 530 U.S. 428, 434-

35 (2000); Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)). “[T]he essential inquiry

under the voluntariness test is whether a suspect’s will was overborne so as to render the

confession a product of coercion.” Id. (citing Freeland, 451 S.W.3d at 815). The

voluntariness test requires this court to assess the psychological impact on the accused

and to evaluate the legal significance of the accused’s reaction. Id. (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973)). When determining whether a confession was

made voluntarily, this court must examine the totality of the circumstances, including the

“characteristics of the accused and the details of the interrogation.” Id. (citing Dickerson,

530 U.S. at 434). These circumstances include:

“[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and

prolonged nature of the questioning; the length of the detention of the

accused before he gave the statement in question; the lack of any advice to

the accused of his constitutional rights; whether there was an unnecessary

delay in bringing him before a magistrate before he gave the confession;

whether the accused was injured[,] intoxicated[,] or drugged, or in ill health

when he gave the statement; whether the accused was deprived of food,

sleep[,] or medical attention; whether the accused was physically abused;

and whether the suspect was threatened with abuse.”

Climer, 400 S.W.3d at 568 (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn.

1996)).

Regarding Singer’s claim that Officer Gibbs secretly recorded this confession, the

pertinent recording shows that Officer Gibbs recorded Singer’s confession with his cell

phone at the hospital and that Singer, who was lucid and articulate at the time, was

looking directly at the cell phone when the recording was made. These facts clearly

dispel Singer’s claim that this recording was “secretly” made. Accordingly, we conclude

that nothing about the way that Singer’s confession was recorded gives any indication

that his confession was coerced.

- 12 -

As to Singer’s claim that Officer Price’s excessive use of force at the stop made

his later confession to ingesting a marijuana joint involuntary, we fully agree with the

trial court’s findings that Singer was advised of his Miranda rights at the scene and that

from the time of Singer’s initial stop to the time Singer made the admission regarding

consuming the marijuana, he was able to fully engage in conversation with all of the

officers. Officer Gibbs specifically testified at trial that despite Singer’s claim that he

had received a back injury during the altercation with Officer Price, Singer was able to

walk out of the hospital of his own accord before being booked at the jail. After

reviewing the record, including the pertinent video recordings, we conclude that Singer

has failed to establish that Officer Price used excessive force at the time of the stop or

that Singer’s alleged back injury rendered his Miranda waiver involuntary. Therefore, we

fully agree with the trial court’s holding that all of Singer’s statements “were made

willingly and voluntarily”. Because Singer has failed to establish that a clear and

unequivocal rule of law was breached, that a substantial right of his was adversely

affected, or that consideration of the error was necessary to do substantial justice, he is

not entitled to plain error relief on this issue. See Smith, 24 S.W.3d at 282.

III. Challenges to his Arrest and Search. Singer additionally contends that the

trial court erred in denying his motion to suppress because his arrest was not supported

by probable cause and the police did not have authority to search his person or his truck.

Singer specifically claims that Officer Price used excessive force during his arrest and

admitted he did not see narcotics in Singer’s mouth or on his person. The State responds

that the police had probable cause to arrest Singer because when Officer Price observed

Singer committing a traffic violation and attempted to pull him over, Singer refused to

immediately stop, disregarded the officer’s commands to stop reaching for something in

his center console, smelled of marijuana, and was physically combative with the officer

as a crack pipe fell onto the ground in plain view. The State asserts that because the

police had probable cause to arrest Singer, the officers validly searched Singer’s person

and his truck incident to his arrest. We conclude that Singer has waived plenary review

of this issue and is not entitled to plain error relief.

Although not specifically raised by the State, Singer’s claim that the trial court

erred in denying his motion to suppress was not included in a motion for new trial.

Because the record shows that Singer failed to raise this issue in a motion for new trial,

we again conclude that Singer has waived this issue, absent plain error. See Tenn. R.

App. P. 3(e); Tenn. R. App. P. 36(a); Smith, 24 S.W.3d at 282.

The proof presented at the suppression hearing and trial showed that Officer Price

observed Singer driving in the rain without his headlights activated. Because Officer

Price observed Singer committing a traffic violation pursuant to Code section 55-9-406,

he had reasonable suspicion to stop him. Although Officer Price attempted to initiate a

- 13 -

traffic stop, Singer did not immediately pull over and continued to drive down the road

and through a parking lot. As Singer continued to drive, Officer Price observed Singer

lifting himself out of his seat and digging through the contents of his center console,

which caused Officer Price to be concerned for his safety and led him to call for back-up.

When Singer finally stopped his vehicle, Officer Price approached Singer’s truck, and

Singer continued to go through the contents of his center console, even though Officer

Price told him to stop. Because Singer refused to comply with this command, Officer

Price became concerned that Singer was looking for a weapon and ordered Singer out of

his truck. When Singer refused to comply, Officer Price placed his arms around Singer

and pulled him out of the truck. As he did so, a crack pipe fell to the ground, and Singer

resisted, which resulted in a physical struggle between Officer Price and Singer that

lasted several minutes. During this struggle, Officer Price realized that Singer was

chewing on something, which he believed to be narcotics, and Singer refused to spit out

whatever he was chewing out. Officer Price and Singer continued to struggle for a few

minutes until other officers arrived on the scene and were able to help Officer Price arrest

Singer.

We conclude that the evidence presented at the suppression hearing and trial

overwhelmingly established that Officer Price and the other officers had probable cause

to arrest Singer. See State v. Clayton, 535 S.W.3d 829, 849 (Tenn. 2017) (“Probable

cause exists when at the time of the arrest, the facts and circumstances within the

knowledge of the officers, and of which they had reasonably trustworthy information, are

sufficient to warrant a prudent person in believing that the defendant had committed or

was committing an offense.” (citation and internal quotation marks omitted)); State v.

Bishop, 431 S.W.3d 22, 41 (Tenn. 2014) (“[T]he strength of the evidence necessary to

establish probable cause to arrest is significantly less than the strength of evidence

necessary to find a defendant guilty beyond a reasonable doubt.”). This evidence also

established that the officers validly searched Singer’s person and the interior of Singer’s

truck incident to Singer’s arrest. See Arizona v. Gant, 556 U.S. 332, 351 (2009) (“Police

may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within

reaching distance of the passenger compartment at the time of the search or it is

reasonable to believe the vehicle contains evidence of the offense of arrest.”). Because

Singer has failed to establish that a clear and unequivocal rule of law was breached, that a

substantial right of his was adversely affected, or that consideration of the error was

necessary to do substantial justice, he is not entitled to plain error relief. See Smith, 24

S.W.3d at 282.

IV. Exculpatory Evidence. Singer also contends that the State withheld

exculpatory evidence by failing to preserve two packs of gauze wrapped in cellophane

that he spit out during his arrest. The State counters that while Singer spit out these

gauze packs, he did not spit out the green substance that smelled of marijuana, which was

- 14 -

never recovered, and that the State had no duty to preserve the gauze packs. We

conclude that Singer has waived plenary review of this issue and is not entitled to plain

error relief.

At trial, Singer never objected or asked for a continuance to address this alleged

Brady violation, which precluded the trial court from making a ruling on this claim.

Because Singer made no effort to address this issue at the trial court level and raised it for

the first time on appeal, this issue is waived. See Tenn. R. App. P. 36(a). Moreover,

Singer’s claim that the State withheld exculpatory evidence was not included in a motion

for new trial. Consequently, we again conclude that Singer has waived this issue, absent

plain error. See Tenn. R. App. P. 3(e); Smith, 24 S.W.3d at 282.

In order to prove a Brady violation, the defendant must establish the following

four elements: (1) that the defendant requested the information (unless the evidence is

obviously exculpatory, in which case the State is bound to release the information

whether requested or not); (2) that the State suppressed the information; (3) that the

information was favorable to the accused; and (4) that the information was material.

Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001) (citing State v. Edgin, 902 S.W.2d 387,

390 (Tenn. 1995); State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995)). The defendant

has the burden of proving a Brady violation by a preponderance of the evidence. See

Edgin, 902 S.W.2d at 389.

Information favorable to the accused, the third element, includes evidence that

could exonerate the accused, corroborate the accused’s position in asserting his

innocence, or enable defense counsel to conduct further and possibly productive

investigation regarding the fact that someone other than the defendant committed the

charged crime. Johnson, 38 S.W.3d at 56 (citing State v. Marshall, 845 S.W.2d 228, 233

(Tenn. Crim. App. 1992)). It also includes evidence that corroborates the defendant’s

version of events, calls into question an important but not indispensable part of the

State’s version of the events, or challenges the credibility of a key State witness. Id. at 57

(citing Commonwealth v. Ellison, 379 N.E.2d 560, 571 (1978); Mazzan v. Warden, Ely

State Prison, 993 P.2d 25, 37 (Nev. 2000)). As to the fourth element, we recognize that

information is considered material when “‘there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Id. (quoting Edgin, 902 S.W.2d at 390; Walker, 910 S.W.2d at 389; State v.

Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998)).

Singer has failed to establish any of the four elements required to prove a Brady

violation. Officer Price testified that Singer spit out two gauze packs rolled in

cellophane. While he acknowledged that the gauze packs that ended up on the ground

did not contain drugs, Officer Price asserted that Singer continued to chew on a green

- 15 -

substance that smelled of marijuana at the time he spit out the gauze packs . In addition,

Officer Gibbs testified that while at the hospital, Singer continued to chew on something

he refused to spit out and that Singer’s tongue and mouth were green from this substance.

Based on this evidence, the gauze packs were not obviously exculpatory. In addition, the

State did not suppress the gauze packs; instead, the State merely chose not to collect the

gauze packs because at the time Singer spit them out, they did not contain drugs. Finally,

the gauze packs were not material because there is no reasonable probability that, had

they been collected and given to the defense, the result of the proceeding would have

been different. Because Singer has failed to establish that a clear and unequivocal rule of

law was breached, that a substantial right of his was adversely affected, or that

consideration of the error was necessary to do substantial justice, he is not entitled to

plain error relief. See Smith, 24 S.W.3d at 282.

V. Defective Indictment. In addition, Singer contends that his indictment was

defective and that the trial court was without jurisdiction to enter its judgments of

conviction. He specifically references the count charging him with tampering with

evidence and asserts that “nothing in the language of section 39-16-503(a) . . . remotely

suggest[s] that the legislature intended to include ‘substance’ as an element” of the

offense. Alternatively, Singer argues that the trial court was without jurisdiction to hear

his criminal case because he had a pending civil lawsuit in federal court,4 wherein he

asserted that Officer Price used excessive force against him at the time of his arrest. The

State responds that Singer is not entitled to relief because the indictment in this case

provided Singer with knowledge of the accusations to which he was required to answer,

furnished the court with an adequate basis for entry of a proper judgment, and protected

Singer against double jeopardy. We agree with the State that Singer is not entitled to

relief on this issue.

Although Singer did not raise his issue regarding the defective indictment in a

motion for new trial, he was not required to do so because the remedy for a defective

indictment is the dismissal of the indictment rather than a new trial. See Tenn. R. App. P.

3(e); State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994) (“The waiver

provision of Rule 3(e) . . . does not apply when the issue, if found to be meritorious,

would result in the dismissal of the prosecution against the accused.”); State v. Duncan,

505 S.W.3d 480, 489 n.10 (Tenn. 2016) (“If the matter is considered jurisdictional and it

is determined that the indictment does not give proper notice to the defendant, then the

indictment must be dismissed.”). We also recognize that Singer raised his claim of a

defective indictment in his pro se pre-trial motions to dismiss and in his pro se “Motion in

Arrest of Judgment” that was filed after his judgments of conviction were entered. See

4

No documentation regarding this federal lawsuit was included in the appellate record.

- 16 -

Tenn. R. Crim. P. 12(b)(2)(B); Tenn. R. Crim. P. 34(a)(2). Accordingly, we will address

this issue on its merits.

The United States Constitution and the Tennessee Constitution state that a

defendant is entitled to knowledge of “the nature and cause of the accusation.” U.S.

Const. amend. VI; Tennessee Const. art. I, § 9. The Tennessee Supreme Court has stated

that an indictment is valid if it contains sufficient information (1) to enable the defendant

to know the accusation to which answer is required, (2) to furnish the court adequate

basis for the entry of a proper judgment, and (3) to protect the defendant against double

jeopardy. State v. Hammonds, 30 S.W.3d 294, 299 (Tenn. 2000) (citing Hill, 954 S.W.2d

at 727). Moreover, pursuant to Tennessee Code Annotated section 40-13-202, the

indictment must

state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in such a manner so as to enable a person of

common understanding to know what is intended, and with that degree of

certainty which will enable the court, on conviction, to pronounce the

proper judgment.

Tenn. Code Ann. § 40-13-202; see Hammonds, 30 S.W.3d at 300 (stating that

“indictments which achieve the overriding purpose of notice to the accused will be

considered sufficient to satisfy both constitutional and statutory requirements”).

Because challenges to the validity of an indictment involve issues of law, we

review them de novo. State v. Smith, 492 S.W.3d 224, 239 (Tenn. 2016) (citing Hill, 954

S.W.2d at 727). “The provisions of the criminal code are to be ‘construed according to

the fair import of their terms.’” State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010)

(citing Tenn. Code Ann. § 39-11-104 (2006)). When interpreting a statute, “we must

ascertain and give full effect to the General Assembly’s intent.” State v. Smith, 436

S.W.3d 751, 762 (Tenn. 2014) (citing Walker v. Sunrise Pontiac-GMC Truck, Inc., 249

S.W.3d 301, 309 (Tenn. 2008)). The General Assembly’s intent must be carried out

“without unduly expanding or restricting the language of the statute beyond the

legislature’s intended scope.” Id. (citing Premium Fin. Corp. of Am. v. Crump Ins.

Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998)). “When the statutory

language is clear and unambiguous, we apply the plain meaning of the statute.” Id.

However, where the language is ambiguous, we must look to the “broader statutory

scheme, the history of the legislation, or other sources to discern its meaning.” State v.

Casper, 297 S.W.3d 676, 683 (Tenn. 2009).

Here, Singer was charged with tampering with evidence, which provides, in

pertinent part:

- 17 -

(a) It is unlawful for any person, knowing that an investigation or official

proceeding is pending or in progress, to:

(1) Alter, destroy, or conceal any record, document or thing with intent to

impair its verity, legibility, or availability as evidence in the investigation

or official proceeding[.]

Tenn. Code Ann. § 39-16-503 (emphasis added).

Singer was specifically indicted for this offense as follows:

The Grand Jurors of Rutherford County, Tennessee, duly impaneled

and sworn upon their oath present that in Rutherford County, Tennessee

and before a finding of this indictment during the month of October 2015

Leonard Singer did unlawfully and feloniously alter, destroy, or conceal

any substance or thing, to wit: MARIJUANA with the intent to impair its

availability as evidence in an investigation, knowing that an investigation

was in progress, in violation of T.C.A. 39-16-503 and against the peace and

dignity of the State of Tennessee.

Code section 39-16-503, which criminalizes tampering with evidence, specifically

includes “any record, document, or thing” in its definition of what a person may not alter,

destroy, or conceal. See Tenn. Code Ann. § 39-16-503(a)(1). The Tennessee Supreme

Court applied a “broad, generic construction” to the word “thing” as it is used in Code

section 39-16-503(a)(1). Majors, 318 S.W.3d at 859; State v. Hawkins, 406 S.W.3d 121,

132 (Tenn. 2013). The court held that “thing,” as used in this statute, refers to “an object

or entity not precisely designated and perhaps not even capable of being designated.”

Majors, 318 S.W.3d at 860. In addition, there is no requirement that the State “identify

exactly what ‘thing’ was tampered with.” Id. at 859. As a result, “the State must show

only that the defendant, aware of an imminent police investigation, chose to ‘[a]lter,

destroy, or conceal’ something with the intent to deprive the police of its use as evidence

in that investigation.” State v. Harvell, 415 S.W.3d 853, 861-62 (Tenn. Crim. App. 2010)

(quoting Tenn. Code Ann. § 39-16-503(a)(1)). “It does not matter for purposes of the

statute whether the substance at issue was an illegal narcotic, a legal chemical precursor

to such a narcotic, the ashes of burned currency or counterfeit currency, or, for that

matter, mere flour or baking soda.” Id. at 862. Because the term “substance” certainly

falls within the definition provided by the Tennessee Supreme Court for “thing” as used

in Code section 39-16-503, Singer is not entitled to relief on this issue.

- 18 -

To the extent that Singer argues that the evidence is insufficient to sustain his

conviction for tampering with evidence, we conclude that based on the evidence

presented at trial, a rational jury could have found that Singer destroyed and concealed

whatever was in his mouth in order to prevent the police from uncovering it as a part of

the pending investigation against him. Accordingly, the evidence is sufficient to sustain

Singer’s conviction pursuant to Code section 39-16-503.

As to Singer’s broader claim that his indictment was defective, which deprived the

trial court of jurisdiction, we note the indictment in this case clearly charged Singer with

the relevant offenses of tampering with evidence, simple possession of cocaine, and

possession of drug paraphernalia. These charges contained facts constituting the offense

in ordinary and concise language and identified the applicable statute criminalizing each

offense. See Tenn. Code Ann. § 40-13-202. In addition, the indictment in this case (1)

enabled Singer to know the accusations to which he was required to answer; (2) furnished

the court with an adequate basis for entry of a proper judgment, and (3) protected Singer

against double jeopardy. See Hammonds, 30 S.W.3d at 299 (citing Hill, 954 S.W.2d at

727). Consequently, we conclude that the indictment in this case achieved the overriding

purpose of notice to Singer of the charged offenses and satisfied the constitutional and

statutory requirements. See id. at 300.

Finally, although Singer claims that the trial court was without jurisdiction in his

criminal case because he had a pending civil lawsuit in federal court alleging a claim that

Officer Price used excessive force during the arrest, Singer has waived this issue by

failing to provide any authority supporting this claim. See Tenn. Ct. Crim. App. R.

10(b); Tenn. R. App. P. 27(a)(7). In addition, Singer has also waived this issue by failing

to include any documentation regarding the existence of this federal suit. We reiterate

that the appellant has a duty to prepare a record that conveys “a fair, accurate and

complete account of what transpired with respect to those issues that are the bases of

appeal.” Tenn. R. App. P. 24(b). “Where . . . the record is incomplete, and does not

contain a transcript of the proceedings relevant to an issue presented for review, or

portions of the record upon which a party relies, this Court is precluded from considering

the issue.” State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1998) (citing State

v. Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131

(Tenn. Crim. App. 1981)). For all these reasons, we conclude that Singer is not entitled

to relief.

VI. Conspiracy to Fabricate Governmental Documents. Singer additionally

argues that the police, his attorneys, the prosecutors, and the trial judge conspired against

him by making materially false statements and representations and by concealing and

fabricating government documents for the purpose of harassing him. He specifically

claims that Officer Price lied about the information contained in his affidavit of

- 19 -

complaint; that the prosecutors, his attorneys, and the trial court utilized the false

affidavit of complaint and the defective indictment during his suppression hearing and

trial; and that the police, his attorneys, and the prosecutors suppressed exculpatory

evidence. Singer asserts that he filed a “civil rights action under 42 U.S.C. 1983”

because of Officer Price’s “use of force” during his arrest and because the prosecutors

used a defective indictment to charge him. We conclude that Singer has waived plenary

review of this issue and is not entitled to plain error review.

While the record does show that Singer made several unwarranted complaints

about the attorneys who represented him, it does not show that Singer ever filed a motion

to recuse the trial judge or prosecutor in his case based on these allegations. See Tenn. R.

App. P. 36(a). In addition, Singer’s claim that the police, his attorneys, the prosecutors,

and the trial judge conspired against him was not included in a motion for new trial.

Therefore, we once again conclude that Singer has waived this issue, absent plain error.

See Tenn. R. App. P. 3(e); Smith, 24 S.W.3d at 282.

We reiterate that “[i]t is the accused’s burden to persuade an appellate court that

the trial court committed plain error.” Bledsoe, 226 S.W.3d at 355. We have already

held that Singer’s indictment was not defective. In addition, Singer has failed to present

any evidence to support his claim that the aforementioned parties conspired against him

by making materially false statements and representations and by concealing and

fabricating government documents. Because Singer has failed to establish that a clear

and unequivocal rule of law was breached, that a substantial right of his was adversely

affected, or that consideration of the error was necessary to do substantial justice, he is

not entitled to plain error relief. See Smith, 24 S.W.3d at 282.

VII. Misconduct of Parole Board. Lastly, Singer contends that Kayla Young,

an employee of the Tennessee Board of Probation and Parole, violated Code section 40-

35-207 when she failed to conduct an adequate investigation before submitting her Pre-

Sentence Investigation Report to the trial court. Singer claims that had Young conducted

a proper investigation, she would have discovered that prosecutors charged him under a

defective indictment, which was the subject of his federal civil lawsuit. Singer also

appears to contend that Tennessee Board of Probation and Parole violated his due process

rights when it failed to comply with Code section 40-31-103, which requires all courts,

departments, agencies, officers and employees of this state and its political subdivisions

to enforce the Interstate Compact on Detainers. He claims that the Tennessee parole

board failed to conduct a prompt informal inquiry into his arrest to determine if there

were reasonable grounds to believe that he had violated his parole from his sentence in

Texas and failed to appoint him counsel and to allow him to confront and cross-examine

witnesses at his probable cause hearing. The State responds that Singer’s claim is not

properly before this court because this court lacks territorial jurisdiction to review

- 20 -

Singer’s complaints regarding parole proceedings occurring in another state. We

conclude that Singer is not entitled to relief.

We have already held that Singer’s indictment was not defective. Therefore, we

conclude that Singer is not entitled to relief on his claim that Kayla Young did not

discover his defective indictment because she allegedly failed to conduct a proper

investigation into his case when preparing her pre-sentence investigation report.

As to Singer’s claim that the Tennessee Board of Probation and Parole violated his

due process rights when it failed to comply with Code section 40-31-103 regarding the

Interstate Compact on Detainers, we note that any issue regarding an agency’s failure to

comply with the Interstate Compact on Detainers is not one of the enumerated actions

from which a defendant may appeal as of right under Rule 3(b) of the Tennessee Rules of

Appellate Procedure. Rule 3(b) provides:

Availability of Appeal as of Right by Defendant in Criminal Actions.

In criminal actions an appeal as of right by a defendant lies from any

judgment of conviction entered by a trial court from which an appeal lies to

the Supreme Court or Court of Criminal Appeals: (1) on a plea of not

guilty; and (2) on a plea of guilty or nolo contendere, if the defendant

entered into a plea agreement but explicitly reserved the right to appeal a

certified question of law dispositive of the case pursuant to and in

compliance with the requirements of Rule 37(b)(2)(i) or (iv) of the

Tennessee Rules of Criminal Procedure, or if the defendant seeks review of

the sentence and there was no plea agreement concerning the sentence, or if

the issues presented for review were not waived as a matter of law by the

plea of guilty or nolo contendere and if such issues are apparent from the

record of the proceedings already had. The defendant may also appeal as of

right from an order denying or revoking probation, and from a final

judgment in a criminal contempt, habeas corpus, extradition, or post-

conviction proceeding.

Tenn. R. App. P. 3(b) (emphases added). Here, Singer’s issue does not relate to “any

judgment of conviction entered by a trial court” or any other enumerated actions from

which a defendant may appeal as of right under Rule 3(b); instead, Singer’s claim

appears to be a constitutional challenge to the Tennessee Board of Probation and Parole’s

alleged failure to abide by the Interstate Compact on Detainers. Given this interpretation

of the issue, Singer is not entitled to relief. Finally, to the extent that Singer’s issue

relates to the determination that his convictions in this case violated his parole in Texas,

we conclude that this court lacks territorial jurisdiction to adjudicate this issue. In order

for this court to exercise judicial power to hear and determine a case, we must have

- 21 -

territorial jurisdiction. State v. Legg, 9 S.W.3d 111, 114 (Tenn. 1999). Because the

Tennessee Court of Criminal Appeals does not have the power to hear issues regarding

parole violations for sentences imposed in Texas, we agree with the State that this claim

is not properly before the court.

CONCLUSION

Based on the aforementioned authorities and reasoning, we affirm the judgments

of the trial court.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

- 22 -