IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
June 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: JUNE 15, 1998
)
V. ) HENDERSON COUNTY
)
) HON. FRANKLIN MURCHISON,
JACQUELINE DEANNA ALEXANDER VICKERS ) JUDGE
and WILLIAM J. BOONE )
) NO. 02-S-01-9610-CC-00092
Appellants )
For Appellants: For Appellee:
PATRICK MARTIN JOHN KNOX WALKUP
Jackson, Tennessee Attorney General and Reporter
(For Appellant Vickers)
MICHAEL E. MOORE
HENRY HAILE Solicitor General
Nashville, Tennessee
and DAVID M. HIMMELREICH
CARTHEL L. SMITH, JR. LAURA DYKES
Lexington, TN Deputy Attorney General
(For Appellant Boone)
ALBERT L. PARTEE, III
Senior Counsel
Nashville, Tennessee
JAMES G. WOODALL
District Attorney General
Jackson, Tennessee
OPINION
COURT OF CRIMINAL APPEALS JUDGMENT AFFIRMED BIRCH, J.
We granted permission to appeal under Tenn. R. App. P. 11
to the appellants, Jacqueline Deanna Alexander Vickers and William
J. Boone. The issue is whether a trial court may conduct a
pretrial evidentiary hearing, pursuant to Tenn. R. Crim. P. 12, to
determine the evidentiary sufficiency relevant to the tolling of
the statute of limitations. Because the statute of limitations
issue presented herein is not one “which is capable of
determination without the trial of the general issue,” we conclude
that it should have been submitted to the jury. Accordingly, the
judgment of the Court of Criminal Appeals is affirmed.
I
In an eighteen-count indictment returned on February 1,
1993,1 Vickers, her husband, Ernest Vickers, III,2 and accountant
William J. Boone were charged with various counts of securities
fraud, conspiracy to commit securities fraud, grand larceny,
fraudulent appropriation, and obtaining money by false pretenses.
The charges arose out of the operation of First National Bancshares
Financial Services, Inc. (Financial Services), a company owned by
Vickers’ husband.
Boone was charged with securities fraud in count one and
conspiracy to commit securities fraud in count two. The facts
supporting these charges involved the filing of a false prospectus
of Financial Services with the Commissioner of the Tennessee
1
A prior indictment returned on October 5, 1992, was
superseded by this later indictment.
2
Ernest Vickers, III, is not a party to this appeal.
2
Department of Commerce and Insurance on or about January 11, 1988.
Vickers was charged in counts six, seven, and eight with securities
fraud, fraudulent appropriation, and grand larceny. The facts
supporting these charges related to undisclosed self-dealing in the
sale to Financial Services of certain property. The fraudulent
conduct surrounding this sale was alleged to have occurred on
diverse days between April 14, 1987, and May 14, 1987.
The State alleged that the various offenses occurred
between April 14, 1987, and January 11, 1988, and an indictment was
returned October 5, 1992. Because a four-year limitations period
applies to the offenses charged in counts one, six, seven, and
eight, and a two-year limitations period applies to the offense
charged in count two, the State is consequently barred from
prosecuting the appellants unless it can show that the limitations
statute, Tenn. Code Ann. § 40-2-101 (1982),3 has been tolled. The
State alleged in the indictment that the statute was tolled by the
appellants’ concealment of the offenses. Count one provided:
The statute of limitations for this
offense was tolled until September
28, 1990, during which time
defendants and their agents and
employees concealed the facts of
this crime by continuing to make
material omissions and untrue
3
(b) Prosecutions for any offense punishable by imprisonment
in the penitentiary when the punishment is expressly limited to
five (5) years of less, shall be commenced within two (2) years
next after the commission of the offense, . . . .
(d) Prosecution for any offense punishable by imprisonment in
the penitentiary, other than as specified in subsections (a), (b)
or (c), shall be commenced within four (4) years next after the
commission of the offense.
Tenn. Code Ann. § 40-2-101 (Supp. 1987).
3
statements in written and oral
communications to the commissioner
and the commissioner's
representatives, by delivering or
causing misleading prospectuses to
be delivered to investors without
informing them of their true
intentions and past acts, and by
causing their agents to obtain
waivers from investors of receipt of
prospectuses.
Counts two, six, seven, and eight contained similar tolling
language.
The appellants moved to dismiss the indictment as
untimely. The trial court initially held that the State’s
allegations of concealment were legally sufficient to toll the
statute of limitations. Subsequently, over the State’s objection,
the trial court held a pretrial hearing in order to make findings
of fact on the issue of concealment. As stated by the court, the
sole question was “whether there is any evidence upon which a
rational trier of fact could base a finding that the defendants, or
any of them, concealed the crimes alleged in the indictment in a
manner which would toll the running of the statute of limitations.”
At the conclusion of a lengthy pretrial hearing, the
trial court found that the State became aware of the appellants’
conduct no later than September 28, 1990, the date Financial
Services was placed into receivership on the motion of State
agents. The trial court noted that there could have been no active
concealment after that date. Because the limitations period for
the conspiracy charge is two years, the court held that count two
was time-barred. Further, the court found no evidence of any
4
concealment on the part of Vickers; therefore, all charges against
her were dismissed. As to count one, the remaining count against
Boone, the court found some proof that Boone concealed the true
financial status of Financial Services; consequently, the court
held that the jury must decide the statute of limitations issue in
count one.
Boone went to trial on count one, and Vickers’ husband
went to trial on the remaining counts. At the conclusion of the
State’s proof, the court granted Boone’s motion for a judgment of
acquittal on count one on grounds of insufficient evidence and lack
of proof of concealment. The jury acquitted Vickers’ husband on
counts three through eighteen, but was unable to reach a verdict as
to count one. The State then appealed the pretrial dismissal of
count two against Boone and counts six, seven, and eight against
Vickers. The State did not appeal as to any charges against
Vicker’s husband. The Court of Criminal Appeals reversed and
remanded, finding that the question whether the statute of
limitations was tolled by concealment is a question of fact that
should have been submitted to the jury.
II
As the Court of Criminal Appeals recognized in its
decision, the Tennessee Rules of Criminal Procedure establish the
State’s right to a jury trial. Tenn. R. Crim. P. 5, Advisory
Commission Comments; State v. Brackett, 869 S.W.2d 936, 939 (Tenn.
Crim. App. 1993). Specifically, under Tenn. R. Crim. P. 5(c)(1) a
5
defendant may submit to the jurisdiction of the general sessions
court in misdemeanor cases, but only if the district attorney
general does not object. Further, under Tenn. R. Crim. P. 23 a
defendant cannot waive the right to a trial by jury unless the
district attorney general and the court consent to the waiver.
Having recognized the State’s right to a jury trial, we must
determine whether the trial court had authority to deny that right
in the context of a statute of limitations issue.
Whether the trial court had authority under Tenn. R.
Crim. P. 12 to resolve the statute of limitations issue is a
question of law, which we review de novo. See State v. Davis, 940
S.W.2d 558, 561 (Tenn. 1997). Prior to the adoption of the
Tennessee Rules of Criminal Procedure in 1978, a statute of
limitations defense was one to be established only by proof at
trial. In State v. Landis, 177 Tenn. 304, 145 S.W.2d 1032 (1941),
this Court overturned the pretrial dismissal of an indictment for
untimeliness, because that was a factual issue for the jury to
decide. However, Tenn. R. Crim. P. 12 has modified the common law
rule. The relevant portions of Rule 12 provide:
(b) Pretrial Motions. Any defense,
objection, or request which is
capable of determination without the
trial of the general issue may be
raised before trial by motion.
Motions may be written or oral at
the discretion of the judge. The
following must be raised prior to
trial:
(1) Defenses and objections based
on defects in the institution of the
prosecution; or
6
(2) Defenses and objections based
on defects in the indictment,
presentment or information (other
than that it fails to show
jurisdiction in the court or to
charge an offense which objections
shall be noticed by the court at any
time during the pendency of the
proceedings); or
(3) Motions to suppress evidence;
or
(4) Requests for discovery under
Rule 16; or
(5) Requests for a severance or
consolidation of charges or
defendants under Rule 14.
. . .
(e) Ruling on Motion. A motion
made before trial shall be
determined before trial unless the
court, for good cause, orders that
it be deferred for determination at
the trial of the general issue or
until after verdict, but no such
determination shall be deferred if a
party's right to appeal is adversely
affected. Where factual issues are
involved in determining a motion,
the court shall state its essential
findings on the record.
Thus, under Rule 12 there are five issues which must be
raised before trial. All other issues, including statute of
limitations issues, may be raised before trial, but only if they
are “capable of determination without the trial of the general
issue.” Once an issue is properly raised, the trial court must
make a determination before trial, unless there is good cause to
defer the issue to the jury. The dispositive question in this
case, then, is whether a determination of the limitations issue
will involve a determination of “the general issue.”
7
Because there is no Tennessee law directly on point, we
turn to federal law for guidance in answering this question.
Tennessee’s Rule 12 is identical to its federal counterpart, Fed.
R. Crim. P. 12. The Advisory Committee Notes to the federal rule
explain that the objections and defenses which may be raised at the
defendant’s option include: “such matters as former jeopardy,
former conviction, former acquittal, statute of limitations,
immunity, lack of jurisdiction, failure of indictment or
information to state an offense, etc.” (emphasis added). Thus,
when a statute of limitations question is raised in federal court
prior to trial, the trial court has the authority to decide it.
United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994)(quoting
1 Charles Alan Wright, Federal Practice and Procedure, § 193, p.
708 (2d ed. 1982)), cert. denied, 5114 U.S. 1051, 115 S. Ct. 1430,
131 L. Ed.2d. 311 (1995).
The federal courts’ authority to decide a limitations
issue before trial is not absolute, however. If the defense is
substantially founded upon and intertwined with factual evidence of
the alleged offense that will necessarily be introduced at trial,
it falls within the province of the ultimate finder of fact, and
ruling should be deferred until trial. E.g., Wilson, 26 F.3d at
159; United States v. Blackwell, 954 F. Supp. 944, 954 (D.N.J.
1997). “‘[G]ood cause’ exists, and indeed a decision on a motion
should be deferred, if disposing of the motion involves deciding
issues of fact that are inevitably bound up with evidence about the
alleged offense itself.” Wilson, 26 F.3d at 159. On the other
hand, a pretrial determination of the limitations defense is
8
appropriate when a trial of the facts surrounding the alleged
offense would be of no assistance in determining the validity of
the defense. United States v. Conley, 859 F. Supp. 909, 927-28
(W.D. Pa. 1994) (quoting United States v. Covington, 395 U.S. 57,
60, 89 S. Ct. 1559, 1561, 23 L. Ed.2d 94, 99 (1969)). For example,
if the issue revolves solely around the date a particular offense
occurred, then the matter can certainly be resolved on the motion
before trial. See United States v. Dolan, 189 B.R. 484, 487 (D.
Neb. 1995), aff'd 120 F.3d 856 (8th Cir 1997).
We find the above-described federal rule to be a suitable
standard for ascertaining whether the limitations issue is “capable
of determination without the trial of the general issue,” under
Tenn. R. App. P. 12. Turning now to its application in this case,
the facts supporting the charge against Boone of conspiracy to
commit securities fraud involve the filing of a false prospectus
with the Commissioner of Commerce. Similarly, the facts alleged to
toll the limitations statute involve concealment of the fraud
through “material omissions and untrue statements in written and
oral communications to the commissioner.” The State further
alleged that Boone concealed the fraud by delivering false
prospectuses to investors. Under these facts, we find that the
alleged concealment as a practical matter is nothing more than a
continuation of the fraud for which he is charged.
Next, the facts supporting the charges against Vickers--
securities fraud, fraudulent appropriation, and grand larceny--
involve “undisclosed self-dealing” in the sale of real estate to
9
Financial Services. The facts alleged to toll the limitations
statute again involve concealment of the offenses through omissions
and untrue statements made to the commissioner and through the
delivering of false prospectuses to investors. As we understand
the allegations against Vickers, the statute of limitations was
allegedly tolled by the continuing nondisclosure of the
“undisclosed self-dealing.”
Clearly, this is not a case where the question of
timeliness concerns only the date of the offense or some other fact
unrelated to the appellants’ guilt or innocence. Rather, the same
evidence which would prove concealment and toll the limitations
statute would also tend to prove guilt of the offenses charged. We
therefore conclude that the statute of limitations issue should
have been presented to the jury, because the factual evidence of
the alleged offenses is too closely intertwined with the evidence
of the appellants’ alleged concealment of those offenses.
In sum, trial courts generally may conduct pretrial
evidentiary hearings on statute of limitations issues, pursuant to
Tenn. R. Crim. P. 12(b) and (e), but only when a determination can
be made without involving the general issue of guilt or innocence.
Here, this standard was not satisfied. Consequently, the trial
court’s pretrial determination of the limitations issue violated
Rule 12. The decision of the Court of Criminal Appeals is
accordingly affirmed, and the cause is remanded to the trial court
so that the issues may be resolved by the jury.4
4
Boone has raised three other issues. First, he asserts that
the State is barred under Tenn. R. App. P. 3 from appealing the
10
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Holder, JJ.
Reid, S.J.
dismissal of count two because it waited until he was acquitted at
trial of count one. This issue is meritless. Although the State
could have brought an interlocutory appeal of the trial court's
decision dismissing count two under either Tenn. R. App. P. 9 or
10, it was not required to do so. Rule 3(c)(1) provides that the
State has an appeal of right from an order of the trial court “the
substantive effect of which results in dismissing an indictment,
information, or complaint.” Until the trial court acquitted Boone
on count one, the pretrial dismissal of count two did not have the
substantive effect of dismissing the indictment against him.
Second, Boone contends that the judgment of acquittal on count
one bars the State from retrying him under collateral estoppel or
double jeopardy principles. Third, he contends that the language
of count two is insufficient to charge conspiracy to commit an
offense against the State of Tennessee. Because the trial court
has not had the opportunity to rule on these issues, we will follow
the lead of the Court of Criminal Appeals and decline to address
them.
11