IN THE SUPREME COURT OF TENNESSEE FILED
AT NASHVILLE
December 21, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: DECEMBER 21, 1998
)
v. ) SUMNER COUNTY
)
BOBBY VINCENT BLACKMON ) HON. JANE WHEATCRAFT and
) HON. FRED A. KELLY, III
Appellant ) Judge
)
) NO. 01-S-01-9709-CR-00187
For Appellant: For Appellee:
MARK W. HENDERSON JOHN KNOX WALKUP
Nashville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
DOUGLAS D. HIMES
Assistant Attorney General
Nashville, TN
LAWRENCE RAY WHITLEY
District Attorney General
DEE DAVID GAY
KATHI PHILLIPS
Assistant District Attorney General
Gallatin, TN
OPINION
REVERSED IN PART, AFFIRMED IN PART BIRCH, J.
We granted permission to appeal pursuant to Tenn. R. App.
P. 11 to the appellant, Bobby Vincent Blackmon, in order to
determine whether, and if so, under what circumstances, the right
to be tried by a judge who is constitutionally qualified1 can be
waived. We address also the appellant’s contention that the
judgment of forfeiture entered against his vehicle seized incident
to his arrest on April 20, 1993, constitutes “punishment,” such as
would violate the constitutional prohibitions2 against double
jeopardy.
Following a careful consideration of the issues, we
conclude that a defendant can, indeed, waive the right to a
constitutionally qualified judge. In the case under review,
however, the record does not support a waiver of this right. We
find also that there is no double jeopardy violation in the
forfeiture proceedings.
I
Blackmon was arrested in Sumner County for possession of
a Schedule II controlled substance with intent to sell.3 His
vehicle was confiscated upon arrest and later forfeited to the
State.4
1
Tenn. Const. art. VI, § 11.
2
U.S. Const. amends. V, XIV; Tenn. Const. art. I, § 10.
3
Tenn. Code Ann. § 39-17-417(a)(4)(1991).
4
Tenn. Code Ann. § 53-11-451 (1991 & Supp. 1997).
2
Judge Jane Wheatcraft, then a judge of the General
Sessions Court, conducted Blackmon’s preliminary hearing. At its
conclusion, she found probable cause and bound the charges to the
grand jury, and the defendant was indicted. By the time the case
was set for jury trial on February 14, 1995, Judge Wheatcraft had
become Judge of the Criminal Court for Sumner County. In that
capacity, she conducted Blackmon’s trial on the indicted charges.
The jury convicted Blackmon, but he has not yet been sentenced on
this conviction.
Blackmon filed a motion for arrest of judgment on May 25,
1995, seeking to invalidate the conviction. He insisted that it
violated Tenn. Const. art. VI, § 11, because Judge Wheatcraft had
conducted his preliminary hearing and bond reduction hearing in
General Sessions Court and later conducted his trial in Criminal
Court. Judge Wheatcraft heard the motion on June 20, 1995, and
entered an order granting Blackmon a new trial. Judge Wheatcraft
entered an order of recusal from all further proceedings in this
cause.
On July 18, 1995, the State filed an application for
permission for an interlocutory appeal in an effort to vacate the
order granting a new trial. Judge Wheatcraft granted the State’s
request for an interlocutory appeal on the judge-qualification
issue. Judge Fred A. Kelly, sitting by designation, considered
Blackmon’s motion to dismiss for an alleged double jeopardy
violation. He overruled that motion and granted the motion for an
interlocutory appeal on the double jeopardy issue.
3
On interlocutory appeal, the Court of Criminal Appeals
reversed the ruling awarding Blackmon a new trial and reinstated
the conviction. The court held that Blackmon’s counsel5 waived the
benefit of Tenn. Const. art. VI, § 11, thereby vesting Judge
Wheatcraft with jurisdiction to conduct the trial. Additionally,
the court affirmed the order overruling Blackmon’s motion to
dismiss the forfeiture on double jeopardy grounds, relying on the
decision of the United States Supreme Court in United States v.
Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996).
II
We have addressed the judge-qualification issue before.
In State v. Henderson, 442 S.W.2d 629 (Tenn. 1969), the Court held
that the constitutional right to a constitutionally qualified judge
could be waived. The Court based its decision on the clear
language of Tenn. Const. art. VI, § 11, which provides: “No Judge
of the Supreme or Inferior Courts shall preside on the trial of any
cause . . . in which he [or she] may have presided in any inferior
Court, except by consent of all the parties.” Further, Tenn. Code
Ann. § 17-2-101(4) (1991) provides: “No judge or chancellor shall
be competent, except by consent of all parties, to sit in any of
5
Blackmon was represented by Mark Henderson, a public
defender. Blackmon argues that because Henderson was a public
defender, he was a state agent and could not waive Blackmon’s
constitutional right. Blackmon relies upon Hamilton v. State, 218
Tenn. 317, 320, 403 S.W.2d 302, 303 (Tenn. 1966), which states
“even if consent to waive this constitutional right of defendant
were permissible, defendant was represented in this ‘consent’ by
the Public Defender, a State agent.” Because we hold that Blackmon
did not consent to the waiver, we need not address the merits of
this contention.
4
the following cases: [When the judge or chancellor] . . . [h]as
presided on the trial in an inferior court. . . .” Relying upon
House v. State, 911 S.W.2d 705 (Tenn. 1995), the Court of Criminal
Appeals found that the decision of Blackmon’s counsel to waive the
judge’s qualification was imputable to Blackmon and, hence,
binding. We disagree. Because Blackmon had the right to waive the
constitutional and statutory qualification of the trial judge, we
must determine whether he exercised that right.
The constitutional and statutory provisions relating to
a judge’s qualification are directed towards ensuring the
impartiality of a judge. We have held that the right to an
impartial judge is a fundamental constitutional right. State v.
Benson, 973 S.W.2d 202, 205 (Tenn. 1998). Due to our long-standing
presumption against waiver of fundamental constitional rights,
these rights must be personally waived by a defendant. State v.
Muse, 967 S.W.2d 764, 767 (Tenn. 1998).
In order for a waiver of a constitutionally granted right
to be valid, it must be “voluntarily, knowingly, and intelligently”
given. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).
The knowing and voluntary waiver includes the intentional
relinquishment or abandonment of known rights. State v. Pearson,
858 S.W.2d 879, 887 (Tenn. 1993); Johnson v. State, 834 S.W.2d 922,
923 (Tenn. 1992); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461, 1466 (1938). The record of a waiver of
a defendant’s right “must affirmatively demonstrate that his
decision was both voluntary and knowledgeable, i.e., that he has
5
been made aware of the significant consequences of such a [waiver];
otherwise, it will not amount to an ‘intentional abandonment of a
known right.’” State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).
The Court will not presume a waiver of important constitutional
rights from a silent record. Boykin v. Alabama, 395 U.S. 238, 242,
89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279 (1969).
In the case under submission, the record does not include
evidence sufficient to demonstrate a “knowledgeable” waiver by
Blackmon. The record does not show that Blackmon understood the
effect of the waiver and the attendant constitutional implications.
This is evidenced by counsel’s discussion with the court:
Q: [The Court] Did you discuss the
jurisdictional issue with your client?
A: [Mr. Henderson] I did. I didn’t
discuss the Hamilton case. To be truthful, I
didn’t know about it.
Q: Did you discuss the fact that I had
had the preliminary hearing?
A: He asked me about that, and I told him
I believed you would be a fair and impartial
judge, and I believe you were a fair and
impartial judge. I disagree with some of your
rulings. We will have those kinds of
differences over the years, I expect.
This is not the point, Judge. If you
look at the Hamilton case --
Q: You discussed the fact I had the
preliminary hearing. I had forgotten. I
thought I had just had a bond hearing. That
is neither here nor there. What did you
determine? Not to raise that issue?
A: I told him that I believed you would
be a fair and impartial jurist. And it was my
decision, not his, to go forward and have a
trial of the case.
6
Q: Did he concur with you? I mean did he
say that’s all right?
A: He didn’t say one way or the other
anything. I was counsel, and that is what I
decided to do, and that was the end of it.
Q: He understood at that time he had a
right to raise that issue, I take it.
A: I don’t know what he understood at
that time.
Q: You talked to him about it?
A: I talked to him about it, but as far
as -- it was my opinion that his case would be
better served by going to trial at that time
before you. I felt like you would be fair and
impartial, and I felt like we would get a fair
hearing. And he relied totally on my advice
at that time. . . .
What the record demonstrates is that counsel’s
conversation with Blackmon about this issue was focused on the
fairness of the trial judge not the significance of the waiver. It
further demonstrates counsel’s failure to clearly advise Blackmon
that a different judge would conduct his trial if he declined to
waive the qualification issue. In our view, Blackmon did not waive
his right to a constitutionally qualified judge. This right does
not implicate principles of fairness over which the judge is the
arbiter--it chiefly concerns a judge’s qualification--a matter to
be decided under the constitution and subject to waiver by the
defendant.
III
7
We move now to address Blackmon’s claim that the
forfeiture of his automobile, seized incident to his arrest on the
instant charges, is “punishment” for the purposes of the double
jeopardy clauses of the United States and the Tennessee
Constitutions, thereby rendering additional punishment
unconstitutional.
The double jeopardy clause of the Fifth Amendment to the
United States Constitution, applicable to the states through the
Fourteenth Amendment, provides that no person shall “be subject for
the same offense to be twice put in jeopardy of life or
limb. . . .” In addition, Tenn. Const. art. I, § 10 provides that
“no person shall, for the same offence, be twice put in jeopardy of
life or limb.”
In Ursery, the United States Supreme Court held that
civil forfeiture generally does not constitute punishment for the
purposes of the double jeopardy clause. 518 U.S. at 270-71, 116 S.
Ct. at 2138, 135 L. Ed. 2d at 557. The Court based its decision on
a two-part test, one prong being whether the legislature intended
forfeiture proceedings to be criminal or civil. Id. at 288, 116 S.
Ct. at 2147, 135 L. Ed. 2d at 568-69. The second prong being
whether the forfeiture proceedings are so punitive in form and
effect as to overcome our legislature’s intent and render the
proceedings criminal. Id.
In Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 32
(Tenn. 1998), the Court relied on the two-part Ursery test and held
8
that forfeiture under Tennessee law is an action in rem, which is
traditionally viewed as a civil proceeding. Because the
legislature intended forfeiture to be a civil, in rem proceeding,
the Court held that forfeiture does not impose “punishment” for the
purposes of the double jeopardy clauses of the United States and
the Tennessee Constitutions. Id. at 30. Under Stuart, Blackmon’s
double jeopardy issue is without merit.6
IV
Accordingly, the judgment of the Court of Criminal
Appeals, insofar as it holds that Blackmon consented to the trial
court’s jurisdiction, is reversed. As respects the forfeiture-
double jeopardy issue, the judgment of the Court of Criminal
Appeals is affirmed. The cause is remanded to the trial court for
a new trial or other appropriate disposition. Costs of this cause
are taxed against the State, for which execution may issue if
necessary.
____________________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Holder, Barker, JJ.
6
Blackmon’s double jeopardy issue is controlled by Stuart
which, in fairness to our brethren, was released subsequent to the
Court of Criminal Appeals’s opinion in this cause.
9