This week, the Tennessee Court of Criminal Appeals reversed a criminal court’s dismissal of a domestic assault charge after the court dismissed the charge based on a general sessions judge’s findings. At the preliminary hearing, the general sessions judge found probable cause for domestic assault by offensive contact but did not find probable cause for domestic assault by bodily injury. After the general sessions judge dismissed the domestic assault by bodily injury charge, the district attorney presented the charge to the grand jury, which returned a single-count indictment for domestic assault by bodily injury.
At the trial court level, the defendant filed a motion to dismiss the indictment based upon the preliminary hearing testimony and the general sessions judge’s decision that the evidence did not support a charge for domestic assault by bodily injury. The State responded that Tennessee Criminal Procedure Rule 5.1 permitted the State to present its case to the grand jury even if the general sessions judge did not find probable cause at the preliminary hearing. After considering the evidence presented at the preliminary hearing and the general sessions judge’s decision, the criminal court judge dismissed the indictment as a violation of due process.
However, the court of criminal appeals reversed the criminal court’s decision, noting Tennessee Rule of Criminal Procedure 5.1(b)-(c):
(b) WHEN PROBABLE CAUSE FOUND. – When the magistrate at a preliminary examination determines from the evidence that an offense has been committed and there is probable cause to believe that the defendant committed it, the magistrate shall bind the defendant over to the grand jury and either release the defendant pursuant to the applicable law or commit the defendant to jail by a written order.
(c) WHEN PROBABLE CAUSE NOT FOUND. – When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. . . .
Citing State v. Thurman Randolph, No. W2006-00261-CCA-R9-CD, 2006 WL 2993459, at *5 (Tenn. Crim. App. Oct. 20, 2006), perm. app. denied (Tenn. Mar. 19, 2007), the appellate court stated that “the dismissal of a charge at a preliminary hearing does not prohibit the State from obtaining an indictment at a subsequent date, and . . . the ‘issuance of the indictment by the grand jury . . . mark[s] the beginning of a new criminal proceeding . . . .'” In the case at hand, since the general sessions judge’s decision did not preclude the State from obtaining an indictment at a subsequent date, the court of criminal appeals reversed the trial court’s dismissal of the indictment.
At this point, you may be thinking – “Even if the general sessions dismissal doesn’t help the defendant, that doesn’t necessarily mean the defendant is ‘worse off.’ How can a defendant sometimes be ‘worse off’ by a dismissal at the general sessions level?” Good question. If the general sessions judge dismisses a charge and the grand jury indicts on that charge, the defendant has to make a new bond. Typically, if the general sessions judge finds probable cause and the case is bound over to the grand jury, the criminal court judge will allow the defendant to remain on the same bond.
Therefore, if a defendant is on bond at the preliminary hearing, it may be best to lose the preliminary hearing. That isn’t to say that this is always the best course of action. While the State is not bound by the general sessions judge’s decision, the State doesn’t take a judge’s dismissal lightly. Sometimes, a dismissal at the preliminary hearing will end the case. Further, if a client cannot make bond, a dismissal of his charge(s) will get him out of jail, at least until the grand jury indicts (or he is arrested on new charges).
Given the above, an attorney with a client in general sessions should counsel the client about the goals of the preliminary hearing and the risks/rewards of winning or losing at that level.
State v. Lawson, M2017-00238-CCA-R3-CD (Tenn. Crim. App. Oct. 3, 2017).