# State v. Knight > Tennessee Supreme Court · May 11, 1981 · 616 S.W.2d 593 URL: https://www.frixlaw.com/law-library/cases/9652954 ## Case - **Full name:** STATE of Tennessee, Plaintiff-Appellee, v. Arlie KNIGHT, Defendant-Appellant - **Court:** Tennessee Supreme Court - **Decided:** May 11, 1981 - **Citations:** 616 S.W.2d 593; 1981 Tenn. LEXIS 443 - **Precedential status:** Published - **Opinion:** Dissent by Brock - **Judges:** Harbison, Fones, Cooper, Drowota, Brock - **Cited by:** 135 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9652954 ## How later opinions describe it (automated extraction) - finding the prohibition on double jeopardy did not apply where, even though counsel “cannot be said to have objected to the erroneous action of the court,” but “[h]e actively [sought] such dismissal and in no sense did he seek to preserve appellant’s right to have trial on the… ## Opinion text BROCK, Justice, dissenting. I respectfully dissent. Defendant was indicted in Knox County for embezzlement. At trial a jury was impaneled and sworn. The trial court heard the testimony of one prosecution witness, Mr. James Alexander, President of Kay’s Ice Cream Company, the victim of the alleged embezzlement. Alexander testified that defendant Knight picked up ice cream products at the Kay’s plant in Knoxville before servicing his route, which was in Blount County. The two supermarkets to whom Knight allegedly presented false tickets were in Blount County. The originals of the tickets were then turned in at the home office in Knoxville at the end of the day. Mr. Alexander was cross-examined, then excused. At this point in the trial the judge asked the jury to step out of the courtroom and stated that he would like to “hear from the attorneys” on the question of venue. The prosecutor, Mr. Gill, then presented argument that venue in Knox County was proper. Defense attorney Bell spoke next, but side-stepped the venue issue, and urged a judgment of acquittal under Rule 29, Tenn.R.Crim.P., because of an alleged variance between the elements alleged in the indictment and shown by the State’s proof. The State argues that the following remarks of defendant’s Attorney Bell were equivalent to a motion to dismiss: “Now he cannot show that any of these elements happened in Knox County, Tennessee. We say the State hasn’t got a case in Blount or Knox County as a result of this indictment Placed in the context of Mr. Bell’s whole argument, however, which plainly centered on the supposed defects in the indictment and urged a termination of the case on *598 another ground entirely, this remark does not, in my opinion, amount to a motion to dismiss because of improper venue. The court stated, after responding to Mr. Bell’s Rule 29 motion: “I don’t believe that the State has proved venue in Knox County but it has proved venue in Blount County. Because of that, without even a motion, the Court would have to say that we are in the wrong county trying this.” (Emphasis added.) The court heard further argument from the State on the venue issue. Interspersed in the State’s colloquy with the court were three renewals by the defense of its motion for judgment of acquittal. The judge finally declared that he was going to “sustain the motion,” apparently referring to his own motion for dismissal rather than Mr. Bell’s Rule 29 motion for acquittal. Mr. Bell then stated: “Your honor, we are insistent that the court enter a judgment of acquittal.” The court replied: “I am not going to enter a judgment of acquittal. I'm going to dismiss the case on the fact that the State is in the wrong [county].” 1 Mr. Bell again argued for judgment of acquittal, but the trial judge, holding that the indictment alleged all of the elements of embezzlement by an employee under T.C.A., § 39-4232, repeated his intention to dismiss because of improper venue. Attorney Bell then said: “The defendant excepts to the Court’s ruling, not as to the venue question, but as to the indictment.” The defense did not at any time formally object to the dismissal of the indictment for improper venue. Some narrow exceptions to the prohibition against double jeopardy are made when “there is a manifest necessity for the [dismissal], or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165 (1824). The Supreme Court has cautioned that “The power ought to be used with the greatest caution, under urgent circumstances and for very plain and obvious cases.” Id. Retrial is permissible if the defendant has actively sought or consented to the premature termination of the proceedings. 2 United States v. Scott, 437 U.S. 82 , 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978); Seiber v. State, 542 S.W.2d 381, 385 (Tenn.Crim.App.1976), cert. denied, id. In United States v. Scott, supra, counsel moved to dismiss two counts of an indictment on the grounds that defendant was prejudiced by preindictment delay, and the motion was granted at the end of trial; a subsequent trial for those charges was not barred. 3 Similarly, in Jeffers v. United States, 432 U.S. 137 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977), where the prosecutor moved to consolidate indictments and the defendant successfully opposed the motion, trial under one indictment was permitted following trial and a finding of guilt under the other. In Lee v. United States, 432 U.S. 23 , 97 S.Ct. 2141 , 53 L.Ed.2d 80 (1977), after the prosecutor’s opening statement in a bench trial the defendant moved for a dismissal of the indictment because it failed to allege the requisite specific intent. The judge responded that he needed to study the law. The trial proceeded, and at the close of the evidence the judge granted defendant’s motion. Because counsel had requested the dismissal and had not object *599 ed to completing the trial, the court ruled that defendant had chosen not to exercise his protection against double jeopardy. Id. at 32-33 , 97 S.Ct. at 2146-47. But, the instant case does not fall into the category of those just discussed, because defense counsel neither sought nor consented to dismissal for lack of venue. The thrust of counsel’s argument was that there was a fatal variance between the indictment and the proof respecting certain elements of the offense that justified an acquittal. The only evidence in the record that could arguably be construed as consent to the dismissal is counsel’s statement at the conclusion of the following exchange: “[Defense attorney]: If the court would point out the elements of embezzlement reflected in this indictment — that is the indictment of the State of Tennessee vs. Arlie Knight— “The Court: I’ve already done that and I’m not going to rule on it. In fact, I’m going to deny your motion for judgment of acquittal and proceed on another theory that I have presented, that the indictment is good but the trouble is that the proof shows that the events occurred in Blount County .... “[Defense attorney]: All right. Now can we do this, can we let the record reflect that a jury was sworn and that the— “[Prosecutor]: The record already reflects that. “The Court: It would already reflect that. “[Defense attorney]: That traditionally, we— “The Court: I’m going to call them in here and dismiss them and tell them why I’m dismissing them, too. All right, bring the jury back in. “[Prosecutor]: Your Honor, the State excepts and prays for an appeal. “[Defense attorney]: The defendant excepts to the Court’s ruling, not as to the venue question, but as to the indictment.” [Emphasis added.] The quoted discussion terminated a disagreement that was lengthy and fast-moving. Each party was insistent on his position: the prosecutor that venue was proper, the judge that venue was improper, and the defense that a variance required an order of acquittal. Counsel renewed, four times, his motion for judgment of acquittal, which was denied. Viewed in this context, I conclude that the statements made by defense counsel did not amount to consent to the dismissal for lack of venue. Nor do I consider that defense counsel’s failure to voice a formal objection to the court’s dismissal amounted to consent, given the position expressed by counsel and the fast-moving context in which the entire colloquy took place. See People v. Johnson, 396 Mich. 424 , 240 N.W.2d 729 , cert. denied, 429 U.S. 951 , 97 S.Ct. 370 , 50 L.Ed.2d 319 (1976) (silence by defense counsel did not amount to consent by defendant); State v. Sedillo, 88 N.M. 240 , 539 P.2d 630 (N.M.App.1975) (counsel assumed objection would be useless under the circumstances); 1 Wharton’s Crim. Law, § 62. In this respect the case is analogous to United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971), a tax evasion case in which the judge, sua sponte, dismissed the proceedings mid-trial because he feared that several witnesses might be implicated in the case and might not have been adequately warned of their constitutional rights. In that case, too, the dialogue preceding the court’s ruling was fast-paced and the counsel were interrupted several times by the judge. 400 U.S. at 487 , 91 S.Ct. at 558 . The Supreme Court stated in Jorn , “[IJndeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so.” Id. Despite the fact that, as in the instant case, no formal objection was made to the dismissal in the initial trial, the court ruled that a second trial was prohibited. 4 Id. *600 Moreover, in the case at bar defense counsel brought the double jeopardy issue to the court’s attention in his statements concerning the jury, quoted above, and by the following statement, “We say that the State hasn’t got a case either in Blount County or Knox County as a result of this indictment because jeopardy has attached . ... ” It is my opinion that counsel's failure to make a formal objection did not amount to consent to the dismissal. I would hold that the double jeopardy clauses of the Tennessee and United States Constitutions preclude subjecting this defendant to a second trial, his first having been terminated without a verdict, through no fault of his own. . Double jeopardy principles governing mistrials apply to cases where an indictment is dismissed. A mid-trial dismissal was said to be “functionally indistinguishable from a declaration of a mistrial.” Lee v. United States, 432 U.S. 23, 31 , 97 S.Ct. 2141, 2146 , 53 L.Ed.2d 80 (1977). . Even if at the time defense counsel purports to “consent” to termination of the proceedings, however, retrial will be barred if the cause of the ruling was conduct by the prosecutor or judge that rises to the level of overreaching, harassment, or bad faith. Lee v. United States, 432 U.S. 23, 34 , 97 S.Ct. 2141, 2147 , 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 611 , 96 S.Ct. 1075, 1081 , 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543 (1971). .The jury found defendant not guilty of the third count in the indictment. 437 U.S. 84 , 98 S.Ct. 2190 . . Justice Harlan wrote the opinion for a plurality of four. Two justices thought that the Court lacked jurisdiction because the trial judge’s actions amounted to an acquittal, but joined the judgment of the Court to create a majority. 400 U.S. at 488 , 91 S.Ct. at 558 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652954. Public record. Not legal advice.