ROBERT C. DANIELS, )
) Davidson Chancery
Plaintiff/Appellant, ) No. 96-1814-III
)
VS. )
)
CHARLES TRAUGHBER, Chairman, ) Appeal No.
TENNESSEE BOARD OF PAROLES, ) 01A01-9707-CH-00297
ET AL., )
)
Defendants/Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT NASHVILLE
May 6, 1998
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE Cecil W. Crowson
Appellate Court Clerk
HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
David L. Raybin, #3385
HOLLINS, WAGSTER & YARBROUGH, P.C.
2210 SunTrust Center, 424 Church Street
Nashville, Tennessee 37219
Joe Binkley, Sr., #2820
First American Center
315 Deaderick Street
Suite 2395
Nashville, Tennessee 37238-2395
ATTORNEYS FOR PLAINTIFF/APPELLANT
Patricia C. Kussman, #15506
Cordell Hull Building, Second Floor
425 Fifth Avenue South
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANTS/APPELLEES
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS IN SEPARATE OPINION:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
ROBERT C. DANIELS, )
) Davidson Chancery
Plaintiff/Appellant, ) No. 96-1814-III
)
VS. )
)
CHARLES TRAUGHBER, Chairman, ) Appeal No.
TENNESSEE BOARD OF PAROLES, ) 01A01-9707-CH-00297
ET AL., )
)
Defendants/Appellees. )
OPINION
The plaintiff, a prisoner in the custody of the Department of Correction, filed in the Trial
Court a petition for the writ of certiorari from the action of the Board of Paroles on April 18,
1996, rescinding its order of April 9, 1994, granting the prisoner a parole. At the time of the
rescission, the prisoner had not been released from custody.
On July 27, 1989, the prisoner was convicted of second degree murder in the death of
Sylvia Coakley and sentenced to serve thirty-five years in the custody of the Tennessee
Department of Correction.
By letter dated November 27, 1989, the parents of the victim, requested the Board of
Paroles to notify them of any hearing by the Board in respect to the release of the prisoner.
By letter dated January 21, 1994, counsel for the parents notified the Board that he
represented the parents of the victim; that they strongly opposed any early release of the prisoner;
and that he desired to be notified of any hearing on the subject of the release of the prisoner.
On April 9, 1996, the board held a hearing regarding the release of the prisoner. The
Board attempted to notify the parents of the victim, but the letter was not delivered because the
parents had moved from the address furnished by them.
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No effort was made to notify counsel of the parents of the victim as requested by him,
although his correct mailing address was on file with the Board.
On the same date, the Board approved the early release of the prisoner effective July 15,
1996. The prisoner was still in custody when the Board next acted on April 18, 1996.
On April 10, 1996, Honorable Cheryl Blackburn, Assistant Attorney General, wrote the
Board protesting the meeting and action of the Board without notification to her and reminding
the Board of the strong opposition of her office to any early release of the prisoner.
On April 18, 1996, the Board met again, heard the parents of the victim and rescinded
its April 9, 1996, action.
On June 14, 1996, the present suit was filed seeking:
Immediate injunctive relief, common law writ of certiorari,
Federal Civil Rights violation under 42 USC § 1983, both for
money damages and for prospective injunctive relief.
The Trial Court heard the matter without a jury and, on June 24, 1997, filed a
Memorandum and Order stating:
This matter is before the Court on the plaintiff’s
request for issuance of a writ of certiorari. The premise of the
request for the writ is that the defendant members of the
Board of Paroles (“Board”) acted fraudulently, illegally or
arbitrarily in granting the plaintiff parole on April 9, 1996,
and then subsequently rescinding the grant of parole on April
18, 1996.
The defendants deny that there are grounds for the
issuance of the writ. They assert that they acted pursuant to
applicable statutes and rules. The defendants argue that they
acted legally and that the rescission of parole was reasonable.
Having considered the entire record and the argument
of counsel and having carefully studied this matter, the Court
determines that the plaintiff has failed to carry his burden in
demonstrating his entitlement to issuance of a writ of
certiorari. For the reasons set forth below, the Court
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determines that the application for writ of certiorari shall be
denied.
Facts
The record before the Court reveals that the plaintiff
was convicted of second degree murder of his former wife
and was sentenced to thirty-five years imprisonment on July
27, 1989. During the seven and one-half years the plaintiff
was confined, he had a good institutional record and was
accorded trustee status.
A parole release hearing was conducted on April 9,
1996. The plaintiff’s application for parole was supported by
recommendations from two assistant wardens, other prison
personnel, and friends. The hearing officials unanimously
recommended that the plaintiff be released on July 15, 1996
on parole.
Subsequent to the April 9, 1996 hearing, the victim’s
family complained to the Board that neither they nor their
attorney/representative had been notified of the April 9, 1996
hearing. The Assistant District Attorney General, who had
prosecuted the case against the plaintiff, also complained that
she had failed to receive notice of the April 9, 1996 hearing.
The record reveals that notice of the April 9, 1996
hearing was mailed to the victim’s family, but that they did
not receive the notice because they had moved and had not
sent their new address to the Board. The family, however,
had requested that their attorney, Larry Roberts, receive notice
of parole hearings. Filed with the Court by the defendants is
a letter dated January 21, 1994 from Mr. Roberts stating, “My
clients strongly oppose any early release date for Mr. Daniels,
and I would ask that you notify me of any hearing of any thing
which could result in Mr. Daniels’ release from confinement
[emphasis added].” The record reveals that the Board failed
to notify Mr. Roberts of the April 9, 1996 hearing. The
record further establishes that notice was mailed to the office
of the District Attorney but for some reason the District
Attorney who handled the case, Judge Cheryl Blackburn, did
not receive the notice.
Thereafter, written victim impact statements were
received by the Board, and on April 18, 1996, a parole
rescission hearing was held. The victim’s aunt and cousins
testified regarding the impact of the crime on the victim’s
family. The victim’s mother testified regarding the impact of
the crime on the victim’s family. The victim’s mother
testified, attributing a stroke her husband suffered and that her
son sustained cirrhosis of the liver to the crime. The same
three Board members, Traughber, Hill and Chase,
unanimously voted to rescind the plaintiff’s parole. The
stated reasons were, “Declined; Review 4/99; Seriousness of
Offense; Impact on Victim’s Family.”
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The plaintiff then filed a request for appeal of the final
decision of the April 18, 1996 hearing. The appeal was
denied on May 7, 1996 on the grounds that the request did not
meet any of the established criteria for granting an appeal
hearing.
Subsequent to rescission of his parole, the plaintiff
was immediately transferred from a minimum security
facility, Nashville Community Service Center, to a maximum
security facility, Middle Tennessee Reception Center.
Conclusions of Law
To be entitled to a writ of certiorari, the plaintiff must
demonstrate that the action of the Board was illegal,
fraudulent or arbitrary:
Under common law writ of certiorari,
questions of law only will be reviewed by the
courts. An action of an administrative agency
which is not supported by any evidence is
arbitrary and may be quashed on common law
writ of certiorari. Whether or not there is any
material evidence to support the action of the
agency is a question of law to be decided by
the reviewing court upon examination of the
evidence introduced before the agency. Any
additional evidence offered to the reviewing
court is limited to the question of whether the
agency exceeded its jurisdiction, or acted
fraudulently, illegally or arbitrarily.
Watts v. Civil Service Board for Columbia, 6065 S.W.2d 274,
276-77 (Tenn. 1980).
In the case at bar, the plaintiff asserts that the writ is
appropriate because the information presented to the Board on
April 18, 1996 was no different from the information
considered by the Board on April 19, 1996. The plaintiff
argues that the Board was influenced by media and popular
opinion concerns, and that those concerns caused the Board
to arbitrarily rescind the plaintiff’s parole.
The defendants concede that if there were no
differences between the evidence presented at the parole grant
hearing and that presented at the parole rescission hearing
then it would have been arbitrary for the Board to have
rescinded the plaintiff’s parole because there would have been
no evidence to support the Board’s decision. The defendants,
however, point to several differences between the April 9,
1996 hearing and the April 18, 1996 hearing which
differences they assert support the decision to rescind parole.
First, the defendants note that the victim’s aunts and
cousins were present at the April 18, 1996 hearing and that
the live testimony of these individuals, as well as their bearing
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and demeanor, greatly distinguished the April 18, 1996
hearing from the April 9, 1996 hearing. The defendants point
out that the victim’s mother testified that her husband, the
victim’s father, was now in a nursing home suffering from a
stress related stroke due to the death of their daughter, and
that their son suffered from cirrhosis of the liver as a result.
The defendants further assert that Judge Cheryl
Blackburn, the former Assistant District Attorney who
prosecuted the plaintiff, was present at the April 18, 1996
hearing and pointed out discrepancies in the plaintiff’s
testimony at the April 9, 1996 parole hearing and testimony
from his trial. At the April 9, 1996 parole hearing the
plaintiff had described an altercation with his former wife in
which he characterized that he “wrestled” with her. Judge
Blackburn read parts of the transcript from the plaintiff’s
criminal trial which established that the plaintiff had bounced
the victim’s head off of the ground, had bitten her, and that
she had sustained a large bruise on her left arm, a swollen eye
and abrasions on her right and left shoulders.
Based upon the foregoing, the Court concludes that
the plaintiff has failed to carry his burden in demonstrating his
entitlement to a writ of certiorari.
First, the Board did not act fraudulently, illegally or
arbitrarily in scheduling a second hearing to reconsider its
April 9, 1996 decision to grant parole. Tennessee Code
Annotated section 40-28-505(b) provides that at least fourteen
days prior to a scheduled parole hearing, the Board is to notify
the victim or the victim’s representative of the date and place
of the parole hearing. If the Board fails to give the required
notice to the victim, the Board shall consider any written
victim impact statement submitted within fifteen days after
the parole decision has been finalized. If the Board
determines that the impact statement warrants a new hearing,
the Board shall schedule such a hearing with notice to the
parties listed in the statute. Tenn. Code Ann. § 40-28-
505(d)(2). Any notice required to be provided to the victim
or the victim’s representative is to be mailed to the last known
address. Tenn. Code Ann. § 40-28-505(e). “It is the
responsibility of the victim or the victim’s representative to
provide the Board a current mailing address.” Id.
The Court finds, since the victim’s family had
requested that attorney Larry Roberts be notified of parole
matters and since attorney Roberts formally notified the
Board of this request by letter dated January 21, 1994, that
attorney Larry Roberts qualifies under section 40-28-
501(b)(4) as a “victim’s representative who has requested
notice of the date and place of the scheduled hearing” so as to
warrant the Board sending him notice of the April 9, 1996
hearing. When the Board failed to send notice to attorney
Roberts, that failure triggered the provisions of section 40-28-
505(d), providing for a new hearing upon receipt of a written
impact statement from a victim’s family. The record reveals
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that such a statement was received by the Board. The Court,
therefore, concludes that the Board proceeded legally,
correctly and validly pursuant to section 40-28-505 in
scheduling a new hearing upon receiving a written impact
statement from the victim’s family subsequent to the failure
of the Board to notify the representative of the victim’s
family, attorney Larry Roberts, of the April 9, 1996 hearing.
With respect to the decision to rescind the plaintiff’s
parole based on differences between the April 9, 1996 hearing
and the April 18, 1996 hearing, the Court finds that the Board
reasonably could have found the plaintiff’s testimony at the
April 9, 1996 hearing describing the July 13 altercation with
his former wife misleading. The plaintiff describes the
altercation as “wrestling” with his former wife. The details of
that altercation as indicated in the trial transcript were that the
plaintiff had bounced the victim’s head off the ground, had
bitten her and that she had sustained a large bruise on her left
arm, a swollen left eye and abrasions on her right and left
shoulders. As to the substantiality of live testimony, the
Court concludes that observing the demeanor of witnesses as
well as hearing their testimony could lead to a different
conclusion about the impact of a crime on a family than just
reviewing written information.
The choice to grant or deny parole involves a personal
observation filtered through the experience of the decision
maker and leading to a predictive judgment as to what is best
both for the individual inmate and for the community.
Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 7-8, 99 S.Ct. 2100, 60 L.
Ed.2d 688 (1979). A determination of whether to release a
particular inmate on parole “must include consideration of
what the entire record shows up to the time of the sentence,
including the gravity of the offense in that particular case.”
Id. at 442 U.S. at 15.
The Court finds that the combination of live testimony
from the victim’s family as well as the discrepancy between
the plaintiff’s testimony at the April 9, 1996 of his altercation
with his former wife and the facts of that altercation
established at trial are substantial enough distinctions to
support the Board changing its decision regarding parole and,
therefore, that the change in the decision regarding parole
from the April 9 hearing to the April 18 hearing was not
arbitrary.
It is, therefore, ORDERED that the plaintiff’s
application for writ of certiorari is denied. Costs are taxed to
the plaintiff.
On appeal, the prisoner presents the following issues:
1. Whether the Board’s rescission of Mr. Daniels’
parole was in violation of the due process provisions of the
United States and Tennessee Constitutions, specific
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Tennessee statues, and the Parole Board’s own rules and
regulations.
2. Whether the Board’s rescission of parole was arbitrary
and illegal given that the “seriousness of the offense” could
not form the basis of a parole rescission.
3. Whether the provisions of T.C.A. § 40-28-505
contemplate that an attorney for the family of a person who
was killed, constitutes a “statutory victim” for purposes of
parole hearing notification where the family has already
requested notification but has failed to keep the Parole Board
advised of their current address as the statute requires.
The Board expresses the issues as follows:
Tennessee law provides that a common law writ of certiorari
will issue when an agency action has been illegal or is not
supported by an evidence. The Board of Paroles scheduled a
second parole hearing for the appellant after hearing that his
victim’s family had not received notice of his initial hearing.
After holding a second hearing where his victim’s family was
permitted to protest his release, the Board rescinded the
appellant’s grant of parole. The issues presented on appeal
are:
1. Whether rescinding the appellant’s parole violated
state and federal constitutional guarantees of due process,
Tenn. Code Ann. § 40-28-505, and/or the Rules of the Board
of Paroles;
This statute provides that if the Board fails to
provide advance notice of a scheduled parole
hearing to a victim or victim’s representative,
the Board may schedule a subsequent hearing
if a written victim impact statement warrants
it.
2. Whether testimony from the victim’s family at
the second hearing constituted “pertinent information
not available at the time of the [first] hearing”
sufficient to justify parole rescission; and
3. Whether Tenn. Code Ann. § 40-28-505
permits a victim to request notification of scheduled
parole hearings through an attorney.
Applicable Law
T.C.A. § 40-28-117 provides in pertinent part as follows:
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40-28-117. Grounds for parole - Terms. (a) Parole being
a privilege and not a right, no prisoner shall be released on
parole merely as a reward for good conduct or efficient
performance of duties assigned in prison, but only if the board
is of the opinion that there is reasonable probability that such
prisoner, if released, will live and remain at liberty without
violating the law, and that the prisoner’s release is not
incompatible with the welfare of society.
T.C.A. § 40-28-505 provides in pertinent part as follows:
(b) At least thirty (30) days prior to
a scheduled parole hearing and three (3) days prior to a parole
revocation hearing, the board shall send a notice of the date
and place of the hearing to the following individuals:
(1) The trial judge for the court in which the
conviction occurred, or the trial judge’s successor;
(2) The district attorney general in the county in
which the crime was prosecuted;
(3) The sheriff of the county in which the crime
was committed; and
(4) The victim or the victim’s representative who
has requested notification of the date and place of the
scheduled hearing and/or notice of the board’s final decision.
----
( c) No later than thirty (30) days after a parole or
parole revocation decision has been finalized, the board shall
send notice of its decision to those required to receive notice
under subsection (b), together with notice that any victim
whom the board failed to notify as required in subsection (b)
has the opportunity to have a written victim impact statement
considered by the board, pursuant to subsection (d).
----
(2) If within fifteen (15) days after a parole or a
parole revocation decision has been finalized, the board
receives a written victim impact statement from a party to
whom the board failed to provide the notice required in
subsection (b), the board shall consider the statement. If the
board finds that the victim impact statement warrants a new
hearing, it shall schedule such a hearing, subject to all
notification requirements under subsection (b).
T.C.A. § 40-28-503 reads as follows:
40-28-503. Attendance policies - Standard victim
notification form.
(a) The board shall establish a policy governing
attendance at board hearings and submission and use of
victim impact statements. Copies of the policy shall be
available upon request. The policy shall govern:
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(1) The requirement that those requesting
notification of parole and parole revocation hearings keep the
board advised of their current addresses and telephone
numbers;
(2) Instructions for attending and participating in
parole and parole revocation hearings;
(3) The limitations on attendance as set forth in §
40-28-502;
(4) Reasonable limitations on oral presentations;
and
(5) Information about board discretion to
investigate victim impact statements.
(b) The board shall establish a standard victim
notification form. The board shall distribute copies of such
forms to the victim witness coordinator in each judicial
district for the state who shall make copies of the form
available to the appropriate persons. [Acts 1993, ch. 336, § 3.]
Under the common law writ of certiorari, the reviewing court is limited to the
inquiry of whether the administrative agency acted fraudulently, illegally or arbitrarily.
Watts v. Civil Service Board for Columbia, Tenn 1980, 606 S.W.2d 274.
Nothing is found in this record to indicate that the Board acted fraudulently, illegally
or arbitrarily.
A prisoner has no constitutional or inherent right to conditional release prior to the
expiration of a valid sentence. Grienholtz v. Inmates of Nebraska, Penal and Correctional
Complex, 442 US1, 99 S.Ct. 2100, 60 L.Ed. 2d 668 (1979); Kaylor v. Bradley, Tenn. App.
1995, 912 S.W.2d 728.
The parole of prisoners rests solely within the discretion of the Board of Paroles.
Wright v. Trammell, 6th Cir. 1987, 810 F.2d 589.
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A prisoner possesses no protected liberty interest in a unilaterally expected release.
Jago v. Van Curen, 454 US 14, 102 S.Ct., 70 L.Ed.2d 13 (1981).
A prisoner’s right to early release must be found in the State Statutes and Rules of
the Board. Wells v. Tennessee Board of Paroles, Tenn. App. 1995, 909 S.W.2d 826.
Nothing is found in this record to indicate that any constitutional or inherent right of
the prisoner has been violated.
The prisoner complains that the Board heard evidence from the victims tending to
exacerbate the seriousness of his offense.
The administrative record contains a hand written summary of the evidence received
by the Board at the April 18, 1996 hearing. It includes the following:
Ms. Blackburn showed pictures of victim’s property, bruises
on Mrs. Coakley --- read portions of transcript.
Robert Schultz was present August 16, 1988. Subject shot
through door - shot Mrs. Coakley.
Larry Roberts spoke of continued violence in this case.
Showed pictures of Mrs. Coakley after she was shot.
Mary Mathews - Friend, showed picture of Mrs. Coakley prior
to incidents. Very attractive. Spoke of the violence against
Mrs. Coakley.
Mrs. Coakley - Mother of victim. Many Tears.
Mary Ann Austin - Sylvia Coakley’s aunt. Many tears. Been
detrimental to family.
Carla Sanders - Cousin to victim. She said body was so bad
they had a closed casket funeral. Read from a paper. Showed
much hostility.
The right of peaceable protest and petition for redress of grievance is constitutional.
U.S. Constitution, Amendment I; Tennessee Constitution, Article I, Section 23. Inherent in
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such rights is the rights of citizens to demonstrate personally the intensity of their sentiments.
The Board did not initially have the benefit of the exercise of these rights. At its second
hearing it did have the benefit of these expressions and rebuttal of the prisoner’s testimony
of a gentle and accidental murder.
In view of the statutes relating to the Board of Paroles, quoted above, the arguments
regarding the Open Meetings Law are deemed irrelevant.
The letter from the attorney for the family of the victim was effective to furnish the
Board with a new address for the family, i.e., in care of their attorney. Moreover, as counsel
for interested parties, he was entitled to notice in his own right.
Each of the issues present above has been examined and resolved. No reversable
error is found in the actions of the Board or the Trial Court.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against
the appellant. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS IN SEPARATE OPINION:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
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