Former Tri-State Crematory abettor Brent Marsh may accept to acknowledgment questions in a civilian balloon he is facing.
The Tennessee Cloister of Appeals disqualified that it will be up to Circuit Cloister Adjudicator Neil Thomas to aphorism on a question-by-question base if Marsh continues to adjure his Fifth Amendment rights adjoin self-incrimination.
Attorneys for the bedmate and accouchement of a Bradley County woman whose charcoal were taken to the crematory say Marsh should no best be accustomed to abode the fifth back he pleaded accusable and is bedfast a 12-year bastille term.
Marsh pleaded accusable in affiliation with the administration of several hundred bodies that were declared to be cremated at the family’s ability at Noble, Ga., abreast LaFayette.
Here is the abounding opinion:
IN THE COURT OF APPEALS OF TENNESSEEAT KNOXVILLEFebruary 28, 2007 SessionRONALD M. FLOYD, ET AL. v. PRIME SUCCESSION OF TN, ET AL.Interlocutory Abode from the Circuit Cloister for Bradley CountyNo. V-02-621 W. Neil Thomas, III, JudgeNo. E2006-01085-COA-R9-CV – FILED AUGUST 13, 2007
This accusation was filed by the bedmate and accouchement of Gail Lavan Floyd, who died in March 2000.T. Ray Brent Marsh (“Marsh”) and the aggregation managed by him, Tri-State Crematory, Inc. (“Tri-State”), are the alone actual defendants. The burning case is one of abounding civilian accomplishments filed adjoin Marsh and Tri-State afterward the analysis of over 300 bodies on the company’s premises. Thebodies were to accept been cremated, but were not. Bent accuse were brought adjoin Marsh in Georgia and Tennessee. He pleaded accusable to abounding of the charges. Afterward Marsh’s sentencing, he was noticed, for the additional time, to accord a degradation in the burning action. At an beforehand deposition, he had invoked his Fifth Amendment advantage adjoin cocky incrimination. As to the present notice, the balloon cloister assured that Marsh could no best adjure his Fifth Amendment advantage because, in the court’s judgment, he is no best adverse bent prosecution. The courtordered Marsh to accord a additional degradation and added ordered that he could not debris to acknowledgment anyquestion airish to him at the degradation if his abnegation was predicated aloft the Fifth Amendment. We accustomed Marsh’s Tenn. R. App. P. 9 appliance for an interlocutory appeal. We beforehand in allotment andvacate in part.Tenn. R. App. P. 9 Interlocutory Appeal; Acumen of the Circuit CourtAffirmed in Allotment and Alone in Part; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the assessment of the court, in which D. MICHAEL SWINEY andSHARON G. LEE, JJ., joined.Stuart F. James, Chattanooga, Tennessee, for the appellant, T. Ray Brent Marsh.William J. Brown, Cleveland, Tennessee, for the appellees, Ronald Floyd, Jeffrey Floyd, MichaelFloyd, and Amanda Clark.OPINIONThe claims adjoin Buckner-Rush Burying Home and added defendants were settled. An agreed adjustment of accommodation and adjournment as to them was entered on November 9, 2005.
I.The accordant basal facts and procedural history are about undisputed. Gail Lavan Floyd died on March 21, 2000. Buckner-Rush Burying Home in Cleveland agreed to handle thefuneral arrange and agreed to accept Mrs. Floyd’s charcoal cremated. Her anatomy was to be cremated at Tri-State, amid in Noble, Georgia, a business that provided burying casework for burying homes in Tennessee, Georgia, and Alabama. Marsh had been operating Tri-State back 1996.
This accusation was filed in July 2002. The plaintiffs sued assorted defendants, including the burying home, Tri-State, and Marsh. According to the complaint, [t]he [p]laintiffs placed the anatomy of their admired one in the affliction of . . . [the burying home] with the specific apprehension that the anatomy would be handled in the abode and adjustment declared and withappropriate affliction and abode as had been represented to them. Thefuneral was captivated and the anatomy was placed in the control of the . . .[funeral home] for burying with the abounding apprehension and affiance that their admired one’s’s [sic] charcoal would be alternate to them afterwards it was appropriately cremated. On or about April 4, 2000, the plaintiffs were brash that their admired one’s’s [sic] charcoal were at the burying home and they could aces them up. This they did and accustomed a atramentous box which was represented to them by assembly of the . . . [funeral home] as actuality the charcoal of their admired one’s [sic] and a archetype of a afterlife affidavit that recites that burying of the anatomy wasperformed at the actor Tri-State Crematory . . . .
On or about, February 25, 2002, the plaintiffs became acquainted throughthe media that bodies had been apparent on the area of the“Crematory” and that an analysis was proceeding. Plaintiffs accept taken the box that was accustomed to them by the . . . [funeral home] and accept been brash that the accommodation are adulterated abstracts and that appropriately it could not be the charcoal of their admired one. To date, they accept not been brash by the . . . [funeral home], the “Crematory” or the Georgia Bureau of Analysis area the bodywas disposed of or the abode it was disposed of.
Plaintiffs accept back apparent that Tri-State Crematory was an [unlicensed] ability that was in a abundant accompaniment of disrepair. Acasual analysis would accept appear to any reasonable actuality that the ability was not appropriately managed or operational with the burying alcove not able to be used. Instead of the bodies actuality disposed of constant with the “Cremation and DispositionAuthorization” absorbed as Exhibit B, bodies that were taken to the “Crematory” were active in pits or accumulation graves on the acreage or placed in burying vaults or aloof dumped on the ground.
Between February and April, a massive analysis involving all-encompassing digging on the area of the “Crematory” were conducted by the authorities of the Accompaniment of Georgia, Walker County, and the Federal Government. Despite this massive undertaking, the plaintiffs [sic] admired one’s anatomy has not been recovered nor has . . . [the disposition of the body] been appear by either the authorities. . . [or] the defendants.
The plaintiffs asserted assorted theories of recovery:“breach of bailment responsibility,” artifice and/or behindhand misrepresentation, intentional/negligent accident of affecting distress, and a affirmation pursuant to the Tennessee Consumer Aegis Act.
As analysis proceeded, the plaintiffs served Marsh with a apprehension to booty his deposition. He filed a motion to quash, citation the likelihood of bent accuse actuality filed adjoin him. The antecedent degradation of Marsh was taken on August 29, 2003. At the alpha of the deposition, Marsh’sattorney fabricated the afterward comments apropos the ambit of the deposition:It is accustomed that due to the attributes of the indictments that were handed bottomward adjoin Mr. Marsh yesterday, that Mr. Marsh will be demography the Fifth Amendment.[Counsel for the plaintiffs] and I had a audition with Adjudicator Thomas bygone in which we dealt with a motion to quash. It is my compassionate that [the plaintiffs’ attorney] is action to ask questions and that Mr. Marsh will be accustomed to beforehand the advantage of the Fifth Amendment, and that at such afterwards time aloft [the plaintiffs’_________________________The abrogating inference referenced by Marsh’s advocate is discussed in the case of Mitchell v. United States, 2526 U.S. 314, 328 (1999):
This Cloister has accustomed “the prevailing aphorism that the Fifth Amendment does not forbid adverse inferences adjoin parties to civilian accomplishments back they debris to affirm in acknowledgment to probative affirmation offered adjoin them,” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), at atomic area abnegation to abandon the advantage does not beforehand “automatically and afterwards added to [the] artifice of sanctions,” Lefkowitz v. Cunningham, 431 U.S. 801, 808, n.5, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In accustomed civilian cases, the affair confronted withthe abracadabra of the advantage by the opposing ancillary has no accommodation to abstain it, say, by alms amnesty from prosecution. The aphorism acceptance abracadabra of the privilege, admitting at the accident of adversity an adverse inference or alike a default, accommodates the adapted not to be a attestant adjoin oneself while still acceptance civilian action to proceed. Another acumen for alleviative civilian and bent cases abnormally is that “the stakes are higher” in bent cases, area alternative or alike action may be at stake, and area the government’s “sole absorption is to convict.” Baxter, 425 U.S., at 318-319, 96 S.Ct. 1551.
Unless contrarily indicated, the alone about-face from the transcribed abode acceding is that it has been changedfrom all basic letters. attorney’s] accommodation whether he wants the inference to be taken or advised by the Adjudicator or there are issues . . . that there’s a abandonment or a catechism that avalanche alfresco the ambit of the Fifth Amendment, we’ll book the degradation archetype with Adjudicator Thomas and . . . [we] will abode those affair with Adjudicator Thomas at such afterwards time.(Footnote added).
A admirable board in Georgia alternate 787 bent indictments adjoin Marsh. Those accuse subjected Marsh to a accessible accumulative book of an alarming cardinal of years: added than8,000. The indictments pertained to over 200 bodies, the character of which had been ascertained. In addition, there were 111 anonymous bodies that were not a allotment of the indictment. On November 19, 2004, Marsh entered into a adjourned abode acceding that was appear to and accustomed by the Superior Cloister for Walker County, Georgia. Although not absolutely bright from the record, it appears that, in the Georgia proceeding, Marsh pleaded accusable to: (a) 122 counts of burying account fraud; (b) 47 counts of authoritative a apocryphal statement; (c) 179 counts of corruption of a asleep body; (d) 439 counts of theftby taking; and (e) 2 counts of “criminal attack – attempted annexation by taking.” The abode agreement, as appear by the commune advocate general, provides, in accordant part, as follows : [The Accompaniment of Georgia] would acclaim in this case that thedefendant be bedevilled to serve twelve years in prison, that he shall additionally be accustomed a circumstantial appellation of acquittal of 75 years and that as As ahead indicated, Marsh’s conduct resulted not alone in bent affairs in Georgia and Tennessee, but additionally in abundant civilian lawsuits in accession to the present case. For example, there is an abode awaiting afore thisCourt styled Akers v. Buckner-Rush Enterprises, Inc., No. E2006-01513-COA-R3-CV, which involves appeals from several added civilian cases which were circumscribed for the purpose of appeal. In addition, a chic action accusation was certified in the Accompaniment of Georgia. The Georgia chic action accusation allegedly was bound contemporaneously with Marsh’s accusable abode in Georgia.-5-a action of acquittal that he pay a accomplished of 20 thousand dollars and that the acquittal of the accomplished arise aural one year afterwards his absolution from incarceration and that he pay the accomplished and accessory costs at the amount of one thousand dollars per year beneath the administration of the acquittal administrator and we would address that the actor be directed to hand-write a letter of acknowledgment to be delivered to adesignated adumbrative for anniversary of the articular charcoal in this case. The belletrist would be angry over to the acquittal appointment for commitment to their ultimate destinations. We would ask the cloister to absolute the actor to abode a accepted letter of apology. These would not be due until six months afterwards the admission of the book itself.
The actor would pay amends to the Accompaniment of Georgia in the sum of eight actor dollars in the accident that the actor shall either anon or alongside attack to accumulation or account in any abode from any transaction arising out of the auction of his story, so to speak,regarding these events.
The actor shall be on unsupervised acquittal afterwards the final acquittal of any and all fines and cloister costs and the book shall be circumstantial with any added book he may accept in the Accompaniment of Tennessee arising out of this and the aeon of incarceration shall activate ancient afterwards January 1st of 2005.
On January 7, 2005, in Tennessee, Marsh pleaded accusable in the Bent Cloister for Bradley County to: (a) 1 calculation of annexation of casework amid $1,000 and $10,000; (b) 7 counts of bent simulation; and (c) 35 counts of corruption of a corpse. It appears that his bastille book in Tennessee was for a absolute of nine years.4In apprehension of Marsh’s accusable pleas and sentencing in the bent proceedings, the plaintiffs afresh filed a apprehension gluttonous to booty Marsh’s deposition. The degradation was appointed for February 7, 2005. Marsh filed a motion to annihilate and for a careful order. In the motion to quash, Marsh acclaimed that he had already been deposed in the Georgia chic action as able-bodied as by the plaintiffs’attorney in the present case. Marsh added:
[The plaintiffs’ advocate took Marsh’s deposition] in these cases. Mr. Marsh asserted the Fifth Amendment and . . . [the plaintiffs’ attorney] has not filed a motion nor has he addressed whether the Fifth Amendment was appropriately taken by Mr. Marsh. . . . [Plaintiffs’ attorney] had the befalling to absolutely appraise Mr. Marsh pursuant to aphorism 26.02 of the Tennessee Rules of Civilian Procedure. There were no limitations placed on the areas of inquiry, and . . . [the plaintiffs’ attorney] had the befalling to ask Mr. Marsh any catechism apropos to discovery, acceptance Mr. Marsh to beforehand the Fifth Amendment, and afresh ask this cloister to abode the issues apropos the FifthAmendment.* * *[The plaintiffs’ attorney] noticed the degradation because of Mr. BrentMarsh’s accusable abode in Walker County, Georgia. . . .
The actuality that a abode has been entered does not beggarly that the Fifth Amendment advantage is waived. If the cloister allows a additional deposition, Mr. Marsh charge beforehand his Fifth Amendment advantage or it is waived. Moreover, the cloister cannot abode the affair of the affirmation of the Fifth Amendment advantage until the catechism is posedand the advantage is asserted. . . .The plaintiffs responded to the motion to annihilate by claiming that the Fifth Amendment could not be invoked because Marsh no best faced bent prosecution. Plaintiffs attached, as exhibits, Marsh’s accusable pleas in Walker County, Georgia, and Bradley County. They additionally absorbed theaffidavits of: (1) William H. Cox, III, the Commune Advocate Accepted for the 11th Judicial Commune ofTennessee; (2) C. Michael Layne, the Commune Advocate Accepted for the 14th Judicial Commune of Tennessee; (3) J. Michael Taylor, the Commune Advocate Accepted for the 12th Judicial Commune ofTennessee; and (4) Mike O’Dell, the Commune Advocate Accepted for the 9th Judicial Circuit ofAlabama. All four of the commune advocate generals accept prosecutorial administration in counties wherefuneral homes are amid which beatific bodies to Tri-State for cremation. Anniversary of the commune attorneygenerals declared that he is annoyed with the after-effects of the bent prosecutions that took abode inWalker County, Georgia, and Bradley County, and that he has no ambition of bringing any additionalcriminal accuse adjoin Marsh.The balloon cloister denied Marsh’s motion to annihilate and ordered Marsh to beforehand with the deposition. The balloon court’s adjustment states:
The court, accepting heard altercation of counsel, on the defendants [sic]Motion to Annihilate the Apprehension of Degradation and Subpoena for BrentMarsh to testify, and afterwards . . . audition altercation of admonition regardingthe Motion to Annihilate and the arguments apropos Mr. Marsh’s built-in rights beneath the Fifth Amendment of the United States Constitution, the cloister hereby:ORDERS, ADJUDGES, and DECREES that the plaintiffs are acceptable to booty the degradation of Mr. Marsh and appropriately denies the Motion to Annihilate filed by Mr. Marsh by his attorneys. The court, further, orders that the degradation shall not be acceptable until March 2006 as the cloister believes that the adapted statute of limitations for any bent accuse will accept asleep by February 17, 2006. In ablaze of the statute of limitations expiring, the cloister orders that the Fifth Amendment advantage is no best accessible to Mr. Marsh in the ambience of these cases. The court, therefore, orders that Mr. Marshcannot booty the Fifth Amendment advantage adjoin self-incriminationas to any catechism in the deposition.(Emphasis added).
After the balloon cloister ordered Marsh to accord a additional degradation and added ordered that Marsh could not beforehand a Fifth Amendment advantage “as to any question,” Marsh filed a Tenn. R. App. P. 9 appliance for interlocutory appeal, which the balloon cloister granted. We after accustomed Marsh’s application.
II.Marsh raises the afterward issues, which we booty accurately from his brief:Whether the balloon cloister appropriately ordered the degradation of the defendant, Brent Marsh, based aloft the balloon court’s cessation that the statute of limitations for any bent accuse expire on a datecertain[.]
Whether the cessation of the statute of limitations for bent accuse permits the cloister to access an adjustment that the Fifth Amendment advantage is no best accessible to a actuality in a civilian case afore the affair invokes the Fifth Amendment Advantage as to questions airish to that person.
Whether the balloon cloister may adjustment that a actuality cannot booty the Fifth Amendment advantage beneath the Tennessee and United States Constitutions adjoin self-incrimination as to any catechism in a degradation as ordered by the Hamilton County Circuit Cloister in itsorder of February 27, 2006.
(Footnote omitted). Marsh additionally asks this Cloister to “consider whether acclimation a additional deposition[in this case] . . . is appropriate.”
III.In this non-jury case, our accepted of analysis is de novo aloft the almanac of the affairs below. Tenn. R. App. P. 13(d). Back our accommodation in this case involves a authentic questions of law, our de novo analysis is pursued with no anticipation of definiteness adhering to the balloon court’s abstracts of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
IV.In Hoffman v. United States, 341 U.S. 479 (1951), the United States Supreme Cloister discussed the Fifth Amendment in the ambience of a federal prosecution. What the Aerial Cloister said would administer with according force to a accompaniment prosecution:
The Fifth Amendment declares in allotment that “No actuality * * * shall becompelled in any Bent Case to be a attestant adjoin himself”.This agreement adjoin affidavit compulsion, like added provisionsof the Bill of Rights, “was added to the aboriginal Constitution in theconviction that too aerial a amount may be paid alike for the unhamperedenforcement of the bent law and that, in its attainment, othersocial altar of a chargeless association should not be sacrificed.” Feldman v.United States, 1944, 322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88L.Ed. 1408. This accouterment of the Amendment charge be accorded advanced architecture in favor of the adapted it was advised to secure. Counselman v. Hitchcock, 1892, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; Arndstein v. McCarthy, 1920, 254 U.S. 71, 72-73, 41 S.Ct. 26, 65 L.Ed. 138.The advantage afforded not alone extends to answers that would inthemselves abutment a confidence beneath a federal bent statute but additionally embraces those which would accouter a articulation in the alternation of affirmation bare to arraign the appellant for a federal crime. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223.But this aegis charge be bedfast to instances area the witnesshas reasonable account to apprehend crisis from a absolute answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The attestant is not absolved from answering alone because he declares that in so accomplishing he would allege himself – his ascendancy does not of itself authorize the hazard of incrimination. It is for the cloister to say whether his blackout is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438,and to crave him to acknowledgment if “it acutely appears to the cloister thathe is mistaken.” Temple v. Commonwealth, 1880, 75 Va. 892, 899.However, if the witness, aloft busy his claim, were adapted to prove the hazard in the faculty in which a affirmation is usually adapted tobe accustomed in court, he would be accountable to abandonment the actual aegis which the advantage is advised to guarantee. To sustain the privilege, it charge alone be axiomatic from the implications of the question, in the ambience in which it is asked, that a acknowledging acknowledgment to the catechism or an account of why it cannot be answered ability be alarming because abusive acknowledgment could result. The balloon adjudicator in appraising the affirmation “must be absolute as abundant by his claimed acumen of the peculiarities of the case as by the facts absolutely in evidence.” See Taft, J., in Ex parte Irvine, C.C.S.D. Ohio,1896, 74 F. 954, 960. Hoffman, 341 U.S. at 485-87 (emphasis added).In United States v. Townsend, 139 F.3d 909 (Table), 1998 WL 80614 (9th. Cir. 1998), the United States Cloister of Appeals for the Ninth Circuit addressed the able action to be active with account to the abracadabra of the Fifth Amendment privilege:
In United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977), this cloister captivated that “[a] able appliance of this accepted requires that the Fifth Amendment affirmation be aloft in acknowledgment to specific questions propounded by the investigating body. This permits the reviewing cloister to actuate whether a acknowledging acknowledgment ability leadto abusive disclosures.” Townsend, 1998 WL 80614, at *3 (emphasis added). In North River Ins. Co. v. Stefanou, 831 F.2d 484 (4th Cir. 1987), cert. denied 486 U.S. 1007 (1988), the United States Cloister of Appeals for theFourth Circuit fabricated a agnate observation:
A affair adulatory in acceptable acceptance to beforehand the advantage charge do so “withrespect to accurate [allegations],” thereby acceptance the balloon judgeto actuate the accordance of anniversary refusal. Accepted Dynamics Corp.v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert.denied, 414 U.S. 1162, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974) (citingHoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95L.Ed. 1118 (1951)). The advantage additionally may be asserted and preservedin the beforehand of analysis proceedings, Fed. R. Civ. P. 26(c), but in specifics acceptable to accommodate the cloister with a almanac aloft which todecide whether the advantage has been appropriately asserted as to each. Typically, the advocate demography the degradation will ask all of his or her questions; the advantage will be asserted 5 as the attestant sees fit; the degradation will be transcribed; and all questions and assertions of the advantage will be presented to the balloon cloister for its review.
We do not beggarly to beforehand that any such action absolutely took place. 6We afresh accent that at this point in the proceedings, we accurate no assessment on the account of the Fifth 7 Amendment to any abeyant catechism that may be airish to Marsh during a approaching deposition. question. United States v. Gordon, 634 F. Supp. 409, 418 (Ct.Int’l Trade 1986).Stefanou, 831 F.2d at 487. (emphasis added) As can be seen, the able action to be activated back the Fifth Amendment is invoked is for the catechism to be asked first. Then, if the Fifth Amendment advantage is invoked, the balloon cloister is “to actuate the accordance of anniversary refusal.” Stefanou, 831 F.2d at 487 (emphasis added). 5 In the present case, the balloon cloister issued a absolute adjustment administering Marsh not to beforehand a Fifth Amendment advantage “as to any question” that ability be asked at the deposition. Such a ample prohibition would prohibit Marsh from asserting the Fifth Amendment advantage alike with account to potentially incriminating affidavit apropos affairs not anon accompanying to the contest at Tri-State. This is not appropriate. We, therefore, achieve that the balloon cloister erred back it entered, in 6 beforehand of the additional deposition, a absolute prohibition adjoin the abracadabra of the FifthAmendment privilege. The absolute prohibition is hereby vacated.At this point in the litigation, we charge not actuate if Marsh can auspiciously beforehand a Fifth Amendment privilege, or, added specifically, whether Marsh has a reasonable acceptance that he could be prosecuted further. Those issues will charge to be absitively by the balloon cloister when, and if, Marshasserts a Fifth Amendment advantage with account to specific questions. In the accident this happens, the balloon cloister will charge to actuate if a acknowledgment by Marsh to any accurate catechism ability beforehand to an “injurious disclosure.” Hoffman, 341 U.S. at 487.When Marsh was initially deposed, the account of the Fifth Amendment to abounding of the questions was not in austere altercation because Marsh had been accusable the day afore the deposition.
Had the plaintiffs gone to the balloon cloister at that time and challenged Marsh’s abracadabra of the FifthAmendment privilege, which they did not, Marsh absolutely would accept been successful. Now that Marsh has pleaded accusable to bent accuse in Georgia and Tennessee and has been sentenced, the mural with attention to the Fifth Amendment may able-bodied be different. In added words, what may accept been adequate by the Fifth Amendment at the time of the aboriginal degradation may not now be protected.7 Accordingly, the balloon cloister committed no absurdity back it ordered Marsh to accord a additional deposition, and we adios Marsh’s affirmation to the contrary. This allocation of the balloon court’s acumen is affirmed.
How To Write A Motion To Quash – How To Write A Motion To Quash
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