Category: Collaborative Case Comments

Tommie Phillips v. State of Tennessee

Tommie Phillips v. State of Tennessee, No. W2019-01927-SC-R11-PC (November 3, 2022).

Written By: Alex Redmond, Associate Editor

The Petitioner was found guilty of several charges, including felony murder, attempted first-degree murder, and especially aggravated burglary. Prior to his arrest the Petitioner admitted to police that he had stabbed two people during a fight that broke out over a drug dispute. After his arrest, the Petitioner admitted to police that he had also killed a person during the dispute. At trial, the Petitioner’s statements were used against him, along with eyewitness identification, victim testimony, and the testimony of a police officer who overheard the Petitioner telling his mother his version of what had occurred. A jury convicted the petitioner. He received a life sentence plus 60 years.

The Petitioner filed a petition for post-conviction relief. The Petitioner argued that his trial counsel failed to provide him with effective assistance of counsel because they did not challenge the admissibility of his statements to the police on Fourth Amendment grounds. The post-conviction court denied relief, stating that the Petitioner failed to establish his ineffective assistance of counsel claim. The Petitioner appealed that decision, but the Court of Criminal Appeals affirmed the judgment of the post-conviction court. The Petitioner appealed that decision, arguing that the lower courts used the incorrect standard in determining whether he had established an ineffective assistance of counsel claim. The Tennessee Supreme Court granted review.

The legal issue, in this case, can be stated as the following: What legal standard should be applied when a Petitioner is attempting to prove prejudice, to establish an ineffective assistance of counsel claim, due to a failure to file a motion to suppress on Fourth Amendment grounds?

To establish a successful claim of ineffective assistance of counsel based on counsel’s failure to file a motion to suppress evidence on Fourth Amendment grounds, the petitioner must prove prejudice by showing: (1) a suppression motion would have been meritorious; (2) counsel’s failure to file such motion was objectively unreasonable; and (3) but for counsel’s objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence.

Tennessee’s Post-Conviction Procedures Act provides criminal defendants a vehicle to bring ineffective assistance of counsel claims against the State. Tennessee law places the burden of proof on the petitioner seeking relief. The petitioner must prove the allegations of fact in his or her petition by clear and convincing evidence. A post-conviction court must then employ the test laid out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, the post-conviction court must analyze those allegations of fact and determine whether the counsel’s performance was deficient and whether that deficiency prejudiced the petitioner. In Kimmelman v. Morris, 477 U.S. 365, 375 (1986) the Supreme Court set forth the legal standard and burden of proof to assess prejudice under the Strickland analysis. Thus, to establish prejudice, the petitioner must be able to show that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. The three-prong test set out by the Tennessee Supreme Court is intended to reflect the connection between Kimmelman and Strickland, in the context of ineffective assistance of counsel claims for failure to file a motion to suppress on Fourth Amendment grounds.

Here, the Petitioner failed to show prejudice under the three-prong test articulated by the Court. Generally, a warrant is required for a defendant’s Fourth Amendment protection from unreasonable searches and seizures to be satisfied. However, an arrest supported by probable cause is an exception to this requirement. Here, the petitioner was arrested without a warrant, but he was given a probable cause determination within seven hours of his arrest. In other words, there was no unreasonable delay between the arrest and the probable cause determination. Therefore, a suppression motion filed on Fourth Amendment grounds would have been meritless. The Petitioner also failed the second prong of this test because trial counsel choosing not to file a meritless motion is not objectively unreasonable. Lastly, the Petitioner could not demonstrate that the verdict would have been different absent his inculpatory statements made to the police. The State had reliable identification evidence, testimony from the surviving victims, and the testimony from the police officer who overheard the Petitioner telling his version of events to his mother. So, the judgment of the Court of Criminal Appeals is affirmed.

Prior to this case, the Tennessee Supreme Court had recognized the legal standard set out in Kimmelman but had not had the opportunity to apply it in this context. This case consequently resolved confusion between the test laid out in Kimmelman and the test laid out in Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436 (Tenn. Crim. App. Sept. 12, 2011). The Petitioner argued that any reliance on Cecil in determining the outcome of his claim was inappropriate because Kimmelman is the governing standard. However, as the Tennessee Supreme Court pointed out, the Cecil and Kimmelman standards for showing prejudice in support of an ineffective assistance of counsel claim are nearly identical. Although it was clear from the Cecil court’s analysis that the correct burden of proof and the legal standard was utilized, the Tennessee Supreme Court acknowledged that the court could have been more precise in defining the legal standard for post-conviction matters as it related to state statutory requirements and the Strickland/Kimmelman requirements. Thus, for clarity and consistency, moving forward lower courts should rely on Kimmelman and utilize the test set out by the Tennessee Supreme Court in this case when deciding this type of ineffective assistance of counsel claim.

State of Tennessee v. Tyler Ward Enix

State of Tennessee v. Tyler Ward Enix, No. E2020-00231-SC-R11-CD (January 26, 2022).

Written By: Riley Jones, Associate Editor

In 2015, Mr. Enix was convicted of premeditated first-degree murder and especially aggravated robbery. He was charged and convicted of stabbing his ex-wife to death in her apartment. At trial, the prosecution argued that Enix was violent and the victim had warned her friends and family of his violent tendencies. The prosecution also put on evidence that the victim was found dead in her apartment after she did not show up for work and the police conducted a wellness check. The police found two phones at the crime scene. On one of those phones, there were records of Mr. Enix and the victim arguing around the time of the crime. The victim had forty-seven stab wounds. Mr. Enix was arrested in Ohio while driving the victim’s car and using her cards to withdraw cash. Their daughter was found in the car with him.

During the trial, Mr. Enix’s defense was that he was acting in a state of passion when he stabbed his ex-wife and that the murder was not premeditated. He also argued that taking her items was not part of a connected plan to the killing, so it was not a robbery. Mr. Enix was convicted and afterward filed a motion for a new trial. In his motion, he argued that there were four instances of prosecutorial misconduct during the closing arguments on which Mr. Enix was entitled to relief, despite not having objected to them during the trial.

First, the record showed that the prosecution counted to 47, the number of stab wounds inflicted on the victim, and stated that he was out of breath and he hadn’t even been wrestling anyone. In the motion, Mr. Enix argued that the prosecution was pounding on the table and testifying to the mechanics of the homicide, which was highly prejudicial. Second, the record also showed that the prosecution posed the possibility that there were communications on the victim’s phone, like with a man she was dating, that was not found because the defendant destroyed evidence. The motion argued that this was speculation and violated the defendant’s right to a fair trial. During rebuttal, the record showed that the prosecution said that Mr. Enix was a coward because he ran from the police. The motion said that this was improper name-calling. Lastly, the record also showed that the prosecution said the defendant was fleeing to Canada, which the motion argued was also speculation.

Mr. Enix argued in his motion for a new trial that he was entitled to relief for these, even though he had not objected to the statements in the trial. Mr. Enix said that including the objections in the motion was enough. The Criminal Court of Appeals review the motion under the Plain Error Doctrine and affirmed the judgment against Mr. Enix. Mr. Enix appealed to the Supreme Court of Tennessee. The question before the Supreme Court was what the appropriate standard of review for prosecutorial misconduct during the closing when the defendant does not object.

The Court held that the appropriate standard of review is the Plain Error Standard and affirmed the decision of the Criminal Court of Appeals. The Court said that in general, appellate review is limited to issues that a party properly preserves for review by objecting at trial and on appeal. Mr. Enix’s motion relied on State v. Hawkins, a case that applied plenary review to two claims raised in a motion for a new trial. However, the Court clarified that that case did not explicitly overrule previous holdings that say not objecting to prosecutorial misconduct in a closing argument waives the right to appeal. The Court read the case as not overruling any of these prior cases and instead overruled Hawkins to the extent it is inconsistent with this case’s decision.

In addition, since the Plain Error Standard applies in these cases, the court held that Mr. Enix is not entitled to relief. The standard’s requirements are: (1) a clear record; (2) a clear breach of a rule of law; (3) the breach adversely affected a substantial right; and (4) the error should be considered to do justice. The issue here is that it did not affect a substantial right. It did not affect the outcome of the proceedings because there was an overwhelming amount of evidence that Mr. Enix premeditated murder. This evidence included previous texts that the defendant was going to harm the victim, recovered DNA and the fact that the defendant fled.

There is nothing on the record to show that these comments made by the prosecutor affected the proceedings. Because the prosecutorial misconduct did not affect the proceedings, the Court upheld Mr. Enix’s convictions.

This case defines what the standard will be when deciding on prosecutorial misconduct in closing arguments. Because the Court determined that the Plain Error Standard applies, objecting contemporaneously will be crucial to preserving a claim for appeal on these grounds. The consequence of this decision is that without a contemporaneous objection, prosecutorial misconduct in closing arguments will likely not be grounds for a new trial. The instances will have to satisfy the high burden of the Plain Error Standard. Specifically, the instance will have to have affected a substantial right of the defendant. The Court set this bar at having an effect on the result of the proceedings. After this case, it will be important to object to any possible prosecutorial misconduct in the closing arguments as it happens.

State of Tennessee v. Terrell Lamont Reid

State of Tennessee v. Terrell Lamont Reid, No. W2019-00636-SC-R11-CD (November 5, 2020).

Written By: Emily Seaborn, Associate Editor

This case concerns claims of relief under Tennessee Rule of Criminal Procedure 36.1, and whether claims are void, or voidable when a person is sentenced under a statute that is presumptively constitutional at the time but is later declared unconstitutional.

The crux of this case lies in its procedural history, not its factual background. On June 24, 2015, Terrell Lamont Reid pleaded guilty to possession of cocaine with intent to sell and possession of a firearm by a firearm by a convicted felon. The latter of the charges was enhanced from a Class C felony to a Class B felony pursuant to the criminal gang enhancement statutes. The trial court sentenced Reid to concurrent seventeen-year sentences for both convictions.

On April 7, 2016 – after Reid was sentenced – the Court of Criminal Appeals declared the criminal gang enhancement statute unconstitutional as a violation of substantive due process. However, the enhancement was presumptively constitutional throughout Reid’s sentencing. Despite the finding that the enhancement was unconstitutional, Reid failed to file a petition for post-conviction relief within the one-year period.

Then, on January 14, 2019, Reid filed a pro se “Motion to Correct [an] Illegal Sentence Pursuant to Tennessee Rule[] of Criminal Procedure 36.1.” In short, Reid’s argument was that his sentence was illegal because the criminal gang enhancement was deemed unconstitutional, and that the appellate court’s decision declaring the enhancement unconstitutional should be applied retroactively to his case. On the other hand, the State argued that Reid was not entitled to relief because his case was “final and not pending or under review” when the appellate court’s decision was decreed.

The trial court denied Reid’s motion, but after he appealed, the Court of Criminal Appeals reversed the judgment of the trial court. The court held that the “application of an unconstitutional law renders a sentence void, and therefore, illegal.” Finding Reid’s sentence void and illegal, the Court of Criminal Appeals remanded the case to the trial court “to determine whether the illegal aspect was a material component of the plea agreement.” The Tennessee Supreme Court then granted the State’s application for permission to appeal.

The Tennessee Supreme Court was reviewing whether Reid made a colorable claim for relief under Tennessee Rule of Criminal Procedure 36.1, which governs sentences that are void, or illegal. Much of this case turns on the Court’s interpretation of its prior decision in Taylor v. State, 995 S.W.2d 78 (Tenn. 1999). In Taylor, the State argued, and the Court concurred, that this Court held that a sentence is not rendered void merely because the statute under which the sentence was imposed is later declared unconstitutional. This holding distinguishes a void sentence from a voidable sentence. A voidable sentence may only be corrected if challenged in a timely post-conviction petition, whereas if a sentence is void and illegal, the sentence may be entitled to relief under Rule 36.1. Rule 36.1 motions can be filed at any time.

The dispositive issue, in this case, was whether Reid’s sentence was void or voidable. If Reid’s sentence was voidable, then it could only be corrected by a one-year post-conviction motion, but if it was void – like he asserts – then it could be entitled to relief under Rule 36.1. Ultimately, the Tennessee Supreme Court concludes that Reid’s sentence is voidable, and not void and illegal. The Court reaffirms its holding in Taylor – “that a statute is presumed constitutional and that a sentence imposed in accordance with a statute in effect at the time of its imposition is voidable and not void.” The Court also differentiates its interpretation of Taylor from that of the intermediate appellate court. While the intermediate appellate court cites to Taylor, and suggested that its holding “is limited to cases preceding the adoption of Rule 36.1 and to cases where declaring a statute unconstitutional had the effect of reviving an earlier statute,” the Tennessee Supreme Court found that it did not limit its holding in that way.

This case clarifies its past ruling in Taylor and reaffirms that a sentence is not per se void and illegal if the statute is presumptively constitutional, but was later declared unconstitutional. Notably, this ruling and interpretation narrows a petitioner’s ability to appeal. If the Petitioner was sentenced under a statute that was later declared unconstitutional, they must challenge the sentence with a timely petition. In contrast, if this Court held that the sentence was void, the sentence could be corrected at any time. Petitioners are now restrained to a time period to appeal their sentence if the statute is declared unconstitutional, which can create greater barriers for Petitioners to correctly, and timely, file their appeals.

State of Tennessee v. William Eugene Moon

State of Tennessee v. William Eugene Moon, No. M2019-01865-SC-R11-CD (October 6, 2021).

Written By: Emily Wheeler, Associate Editor

William Eugene Moon was convicted of both the unlawful employment of a firearm while attempting to commit or during the commission of a dangerous felony and attempted murder. Upon appeal, the Court of Criminal Appeals held the Defendant was not denied a speedy trial and that, though the trial court had committed an error in allowing the improper impeachment of one of the defense’s witnesses, it was a harmless error. Tennessee’s Supreme Court granted the Defendant’s application for appeal regarding whether the appellate court applied the proper standard of review for the right to a speedy trial if that review was completed correctly and if there was a harmless error regarding the improper impeachment of that witness.

On December 17, 2017, Corporal Wilder was patrolling when he noticed four individuals moving between a parked vehicle and a trailer park. Upon questioning an employee of the trailer park, Corporate Wilder asked for the Defendant to exit the trailer; upon his exit, Corporal Wilder noticed a plastic bag inside the Defendant’s mouth and instructed him to spit it out. The two engaged in a brief scuffle.  The details of this scuffle formulated the basis of this case.  Per Corporal Wilder, the Defendant pulled a gun during the scuffle and aimed it towards Wilder’s abdomen.  As such, Corporal Wilder believed the Defendant intended to use deadly force, pushed the Defendant away, and shot him five times. On the other hand, the Defendant alleges that he did not fight against Corporal Wilder and that while he did have a gun on his person, he never drew his weapon. Instead, the Defendant contends the gun fell out when he was shot.

Originally, the Defendant was indicted on five counts: two counts of unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony, attempted first-degree murder, resisting arrest, and aggravated assault. Nonetheless, the trial proceeded with only Counts 1, attempted first-degree murder, and 5, unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony. At trial, Detective Pyrdom testified that he arrived on the scene as backup and witnessed the scuffle. Though he was unable to see either party’s hands or a weapon in the Defendant’s hands, Detective Pyrdom did hear Corporal Wilder giving directions to the Defendant. After the shots were fired, Detective Pyrdom retrieved the Defendant’s weapon which was found at the bottom of the trailer’s steps. For the defense, two eyewitnesses, Larry and Donald Woods, testified that they never saw the Defendant holding a weapon during the encounter. Further, another witness claimed to have seen the Defendant put the gun in his pants before the encounter but never saw the gun in his hands during the encounter.

Regarding whether a defendant had access to a speedy trial, the parties differ on what would be the proper standard of review. Here, the State argued for an abuse of discretion standard while the Defendant argued for a de novo review. Ultimately, the Court agreed with the Defendant and found that the “standard of review for whether a criminal defendant was denied the constitutional right to a speedy trial is de novo with deference to the trial court’s finding of facts unless the evidence preponderates otherwise”. Further, for this review, the Court examines four factors: the length of the delay; the reason for the delay; whether there was a demand for a speedy trial; and the presence/extent of prejudice to the defendant. Here, the Court found the trial had occurred less than fourteen months from when the events transpired; within that time, two continuances were granted to accommodate an older trial and to ensure a three-day window for this trial to occur. Accordingly, these delays were reasonable, weighing the first two factors against the defendant. For the third, it was undisputed that the Defendant requested a speedy trial which weighed in his favor. Finally, the Court found that the Defendant was unable to show “any discernible prejudice” suffered from his delay in the trial.

Finally, the Court agreed with the Defendant that the improper impeachment of Mr. Larry Woods “more probably than not” had an effect on the judgment to create a reversible error. Here, on cross-examination, the Prosecution almost immediately asked Mr. Woods if he had ever sold methamphetamine from his trailer. The trial court overruled the defense counsel’s objection to the questioning while the appellate court was thorough in explaining why this decision was in error. Here, however, the Defendant contends the appellate court erred as it should not have been deemed a harmless error. Ultimately, the Court found that because the evidence against the Defendant “was not overwhelming”, the effect that the improper impeachment had on the jury’s verdict was extremely difficult to quantify. Therein, the case was remanded to the trial court.

Overall, this decision was extremely important in its clarification of the proper standard of review regarding appeals for one’s right to a speedy trial. Interestingly, the Supreme Court of Tennessee did not follow the State’s preference of the standard that the Court of Criminal Appeals had utilized. Even though their ultimate holdings were the same for that point, the differentiation in the standards provides clarity for lower courts to lean upon in future cases. Additionally, this standard will become increasingly crucial as courts continue to get back on track from the effects of COVID-19. While this case’s events occurred almost five years ago, the issue of providing a defendant with his right to a speedy trial will likely be one that appellate courts will face more often going forward. In addition, because the remnants of the pandemic are being felt nationwide, the Court’s ruling on its governing standard of review could be influential as other states face similar questions.

State of Tennessee v. Michael Rimmer

State of Tennessee v. Michael Rimmer, No. W2017-00504-SC-DDT-DD (April 16, 2021).

Written By: Andrew Daffron, Associate Editor

This case involves the disappearance and assumed death of Ricci Lynn Ellsworth. The procedural history of this case takes place over twenty years and involved two trials and three sentencing hearings.

On February 8, 1997, the victim, Ricci Ellsworth, was working as the night clerk at the Memphis Inn in Shelby County. Ellsworth worked in an enclosed office in the motel lobby behind a locked door, shielded from guests by protective glass. On the night of Ellsworth’s disappearance, several guests reported seeing a figure in the motel’s parking lot near a maroon sedan. One guest reported entering the hotel lobby area in front of a figure that Ellsworth appeared to know. Another guest reported seeing two men walk into the lobby area. Another guest reported seeing a figure put something wrapped in a blanket in the trunk of his car, and the car sinking from the weight of the object. The guest then walked into the lobby after the man from the parking lot and reported seeing another man behind the counter pushing cash through the window. He reported that both men had blood on their hands.

At around 3:00 a.m., a local CSX worker tried to get in touch with crew members who were staying at the motel. When the clerk did not answer, he drove to the motel. Upon arriving, he went into the employee bathroom, finding the sink running, blood on the sink basin, and the toilet seat was removed and covered in blood. The worker attracted the attention of two Shelby County Sherriff’s Office patrol cars and directed them to the motel. The police were unable to find Ellsworth, though her car was still in the parking lot. The officers contacted the Memphis Police Department (MPD) which took over the investigation. The MPD officers took photographs of the crime scene, dusted for fingerprints, collected and tagged evidence, and completed paperwork. Blood samples were taken from numerous places blood was discovered. The victim’s body was never found.

The evidence quickly pointed to the Defendant. The Defendant previously had a tumultuous romantic relationship with the victim, during which he was convicted of raping her. During his incarceration for her rape, the Defendant met a childhood friend of the victim, who informed the Defendant that the victim has received a sum of money in settlement of a personal injury claim. This angered the Defendant who believed he was entitled to a portion of the money. The Defendant informed the friend that he intended to kill the victim upon his release from prison. This is one of several people the Defendant informed that he intended to kill the victim while incarcerated. He also bragged to another inmate about being able to dispose of a body in a manner where it would never be found. Upon his release from prison, the Defendant began working at a local automotive collision center. One of his coworkers drove a maroon sedan, which the Defendant asked to borrow. The car was never returned by the Defendant.

In early March, the defendant was stopped in Indiana for speeding. Upon running the car’s plates, the officer realized the MPD had an interest in the car as part of an ongoing investigation. The local police in Indiana contacted MPD who sent detectives that night. MPD detectives watched a local evidence technician process the car. The technician found traces of blood, took ninety-six photographs of the vehicle, and took multiple samples of blood-stained items found in the car. The car was then transported to Memphis and ultimately transferred to the TBI for testing. Evidence was then transferred to the FBI, which found the blood samples taken from the car to match blood samples taken from the crime scene. The FBI forensic examiner also compared the blood samples to samples from the victim’s mother, finding it likely that the samples were taken from a descendant of the mother. The maroon sedan was later returned to the coworker after MPD determined that it no longer had the storage capacity to hold the car, and that MPD had taken enough evidence from it.

After his arrest for the murder of the victim, the Defendant attempted to escape three times. The first escape attempt was from his cell in Indiana. There, he spoke to another inmate about having killed the victim. The second attempt was from a federal prisoner transport van. The third attempt was from the Shelby County Jail.

The first trial occurred in 1998. A jury convicted the Defendant of first-degree murder, aggravated robbery, and theft of property – the judge imposed a death sentence. The State had also charged the Defendant with felony murder, but the jury did not reach a verdict on this count. This was appealed and affirmed by the Court of Criminal Appeals and the Tennessee Supreme Court. The defendant sought post-conviction relief. The post-conviction trial court granted relief, finding ineffective assistance of counsel, and ordered a new trial.

During the second trial in 2016, the state called an expert witness to testify about the blood patterns at the crime scene. He testified that the blood stains were consistent with either blunt force trauma or trauma from a sharp object, stating it was possible for the toilet seat to have been used to kill the victim. The Defendant called two expert witnesses, both of whom raised issues with the collection and testing of the evidence, and that they were unable to make accurate determinations because the evidence was no longer available. After considering the evidence, the jury convicted the Defendant of first-degree premeditated murder, first-degree felony murder, and aggravated robbery. At the penalty phase of the trial, the Defendant waived his right to present mitigating evidence. The jury found an aggravating circumstance beyond a reasonable doubt and imposed a sentence of death.

The Tennessee Supreme Court first considered whether the conviction for felony murder violated the prohibition on double jeopardy. The Court found that it did not because of the nature of the jury instructions. The jury received instructions that were considered to be “acquittal first” instructions, meaning the jury was instructed to consider the lesser count only if it first found the defendant not guilty of the greater offense. As the jury found the Defendant to be guilty of the greater offense, it did not reach the felony murder charge, therefore negating any claim of double jeopardy. The Court also found that the Defendant failed to preserve the issue of prosecutorial misconduct in a manner that would create a double jeopardy issue.

The Court then considered whether MPD erred in not retaining the car so that the Defendant’s experts could evaluate the evidence. The Court affirmed the lower courts’ findings that the State did not have a duty to retain the car. The Court based this finding on the thoroughness of the retrieval of evidence from the car, finding that under these circumstances the car had little exculpatory value and that the Defendant had access to the investigatory materials. In the alternative, the Court found the State did not act improperly because there was no negligence in releasing the car to the owner, the vehicle itself had little significance as evidence, and a finding that the other evidence used at trial was overwhelming.

The Court turned next to whether the trial court erred in allowing the previous convictions for rape and assault under Tennessee Rules of Evidence 404(b). The Court found no abuse of discretion and that the trial court properly admitted the evidence as it was probative of identity, motive, intent, and premeditation, all non-propensity reasons for admission. The Court also considered whether the trial court erred in allowing evidence of the Defendant’s escape attempts. The Court stated that evidence of escape or attempted escape after the commission of a crime can be relevant and admissible at trial to show guilt, knowledge of guilt, and consciousness of guilt. The Court found that this evidence was similarly properly admitted under Rule 404(b), finding that the trial court mitigated any risk of unfair prejudice by giving the jury two limiting instructions about the use of this evidence.

The Court then conducted its mandatory review of the death sentence received by the Defendant. This review is statutorily mandated and is comprised of an evaluation of whether: (1) the death sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the aggravating circumstances outweighed any mitigating circumstances; and (4) the capital sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

The Court found that the trial court conducted both the guilt and penalty phases of the trial in accordance with the applicable statutes and procedural rules, and that the evidence was more than sufficient to support the guilty verdict. The imposition of the death sentence was therefore not arbitrary. The jury did find an aggravating circumstance beyond a reasonable doubt. The record contained little if any mitigating circumstances. Finally, the Court found that the sentence was proportional when compared to similar cases. Finding all the required conditions sufficiently met, the Court affirmed the death sentence.

This case highlights the importance of maintaining the record throughout the pendency of an appeal of a capital case. The events, in this case, occurred over the course of over twenty years and have involved numerous trials, sentencing hearings, and appeals, including to the Tennessee Supreme Court twice. The issues raised in this appeal all were resolved by looking to the record and either finding procedures were sufficiently followed, or in the appeal of the felony murder charge, insufficiently followed. Capital cases often take decades to reach their conclusion, so ensuring a record is sufficient to allow the reviewing court to adequately review each issue raised in subsequent appeals is crucial.

State of Tennessee v. Craig Dagnan

State of Tennessee v. Craig Dagnan, No. M2020-00152-SC-R11-CD (March 4, 2022).

Written By: Claudia Coco, Senior Editor

The Supreme Court of Tennessee considered the case of State of Tennessee v. Craig Dagnan on December 1, 2021. Dagnan appealed his revocation of probation, and while he conceded that the revocation of probation was proper, he claimed that the “trial court abused its discretion by ordering him to serve the balance of his sentence in the Tennessee Department of Corrections.”[i] The Court took this case as an opportunity to clarify the standard for the revocation of probation. The Court ultimately held that the probation of revocation process is a two-step consideration of the trial court. “The first step is to determine whether to revoke probation, and the second is to determine the appropriate consequences upon revocation.”[ii] The case history is as follows.

In July of 2014, Dagnan was accused of a Class D felony, theft over $1,000 but less than $10,000. Dagnan pleaded guilty to that offense in January of 2015. Dagnan “received a six-year sentence as a Range II offender, with five years, six months, and nine days suspended to supervised probation,” and he was ordered to pay $1,250 in restitution and to complete over 100 hours of community service, and not to contact the victim.[iii] Dagnan’s first violation of probation happened four months later because he failed to pay restitution, then he failed to show up to the hearing and was arrested. At a subsequent revocation hearing, Dagnan was sentenced to 90 days in local confinement.

Five months later, Dagnan violated his probation for a second time when he failed his drug screen by testing positive for methamphetamine and failed to pay restitution. Dagnan failed to report to his supervisor as directed by a trial court summons. Dagnan then received a subsequent revocation hearing, where his probation was revoked partially, and he was ordered to serve eight months in local confinement.

In May of 2018, Dagnan had his probation revoked for a third time. Dagnan’s probation was revoked because “he failed to abide by curfew, left the state without permission, incurring a new criminal charge—driving with a suspended license—in Georgia, and failing to report the new charge.”[iv] This time his probation was revoked to serve 120 days in confinement, attend anger management courses, and prohibited him from driving without a valid license as additional probation conditions.

In November of 2018, Dagnan was subject to a fourth probation revocation process for failure to comply with the probation conditions set in May of 2018. After Dagnan’s hearing in January 2019, “the trial court entered an order partially revoking Defendant’s probation to serve eleven months and twenty-nine days in confinement.”[v] Dagnan received a furlough to be released from jail to Freedom House Ministries for drug treatment. A term of the furlough included, “that the defendant was required to report back to the Marion County Jail within four hours if he left the treatment facility for any reason prior to the completion of the program.”[vi]

In June of 2019, Dagnan violated his probation for a fifth time. The treatment program dismissed Dagnan, and Dagnan failed to report to the jail within four hours of release of the program. Additionally, Dagnan “was charged in Georgia with a misdemeanor failure to appear,” and “he also allegedly failed to pay supervision fees, courts costs, and/or fines, and failed to report his arrest.”[vii] The probation revocation hearing was held in December of 2019. After listening to the defendant’s proof, the court instructed that it was conducting a two-step analysis. First, the court made a finding “that defendant violated his probation by failing to report back to jail following his discharge from the treatment facility and absconding.” The second finding “was based on the evidence presented at the hearing and numerous factors including Defendant’s character, prior criminal history, mental health and addiction, and the nature of the offense.”[viii] The court stated that regardless of whether Dagnan was properly discharged from the treatment facility he knew that he had to report to the jail within four hours of release. The court in his findings stated, “Mr. Dagnan, I really only have one option at this point just based upon the criminal history and all of the chances that you’ve been given.”[ix] At the conclusion of the hearing, Dagnan’s probation was revoked in full.

At the Criminal Court of Appeals level, the court found that the trial court judge did not abuse his discretion in revoking the probation in full and ordering the defendant to serve the remainder of his sentence. There was one concurring opinion from Judge Timothy Easter, in which he stated that the statute does not require additional findings of fact or an additional hearing, it is simply sufficient to find that there was a violation of probation.

The Tennessee Supreme Court took this opportunity to clarify the standard. The Supreme Court clarified that probation revocation is a two-step consideration. Clarifying that the first step is to determine whether to revoke probation and the second is to determine the appropriate consequences upon revocation. The trial court does not have to conduct an additional hearing to make these findings. The trial court can make these findings at the revocation hearing entitled to the defendant by law. The Court clarified that “these are two distinct discretionary decisions, both of which must be reviewed and addressed on appeal.”[x] The Court addressed that these additional factual findings facilitate meaningful appellate review. It allows the appellate court to look at factors the trial court reviewed when making a discretionary decision, when reviewing it under an abuse of discretion standard.

The Tennessee Supreme Court found that the appellate court is to conduct an abuse of discretion standard for both steps. The standard of review to be used by the appellate court is “abuse of discretion with a presumption of reasonableness so long as the trial court places sufficient findings and the reasons for its decisions as to the revocation and the consequences on record.”[xi] The court stated that “it is not necessary the trial court’s findings to be particularly lengthy or detailed but only sufficient for the appellate court to conduct a meaningful review of the decision.”[xii] The reasoning for the decision is to promote meaningful appellate review and public confidence. If there are no factual findings made by the trial court, then the “appellate court may conduct a de novo review if the record is sufficiently developed to do so, or the appellate court may remand the case to the trial court to make such findings.”[xiii]

This decision requires that trial court judges conduct a two-step process when conducting a revocation hearing. By not only finding that there was a violation of probation but requiring that the judge make factual findings regarding the consequences of the violation of probation, which allows the appellate court to conduct a meaningful review of the revocation. In addition, it serves a purpose to let the defendant know why his probation is being revoked and the factors that the judge is weighing and considering when making the decision regarding punishment. Finally, it inspires public confidence in the trial court’s decision because it allows for more transparency in the process. This decision allows everyone to see the reasoning for the judge’s decision, and it ultimately helps the appellate court when reviewing the case under an abuse of discretion standard. The appellate court will no longer have to guess what the trial court was thinking at the time probation was revoked, now the findings will on the record for the court to review.

 

[i] State v. Dagnan, 641 S.W.3d 751, 756, 757 (Tenn. 2022)

[ii] Id. at 757.

[iii] Id. at 752.

[iv] Id. at 753.

[v] Id.

[vi] Id.

[vii] Id. at 754.

[viii] Id.

[ix] Id.; See also Id. at 759 (“The transcript of the revocation hearing included six pages of oral findings by the trial judge. The trial court considered Defendant’s repeated violations, his addiction, and the nature of his most recent violation. It noted that, regardless of whether Defendant was properly or wrongfully discharged from the treatment facility, he ‘knew what was expected of him’ and deliberately absconded. Speaking to defendant expressly considered whether to “revoke you in full… or give you another chance or [into some kind of treatment facility.’ Ultimately the court emphasized the lack of success in giving the defendant multiple chances to comply with the terms of probation in the past and the seriousness of his deliberate failure to report back to jail in choosing to order Defendant ot serve his sentence in incarceration.”).

[x] Id. at 757.

[xi] Id. at 759.

[xii] Id.

[xiii] Id.

On June 4, 2018, Douglas Linvil

State of Tennessee v. Douglas E. Linville

State of Tennessee v. Douglas E. Linville, No. W2019-02180-SC-R11-CD (June 1, 2022).

Written By: Hunter Lindsey, Associate Editor

Tennessee Code Annotated § 39-17-432 heightened the penalty for drug offenses committed in “drug-free zones,” requiring that the sentence be subject to a one-level classification increase (i.e., Class D felony to a Class C felony) and required a sentence of at least the minimum time suggested by Tennessee’s sentencing guidelines. Drug-free zones were initially 1,000 feet areas around schools, but the Tennessee legislature added public parks to the statute in 2005 with the caveat that convictions near public parks were not subject to the one-level enhancement.

On June 4, 2018, Douglas Linville’s home was searched by police, who found various scheduled substances and drug paraphernalia. Linville’s home was within 1,000 feet of a drug-free zone, and a public park, subjecting him to heightened penalties under Tennessee law. Linville was convicted of five counts, three of which were relevant to this case: counts one and two were for possessing Schedule II controlled substances (methamphetamine and hydrocodone), and count three was for possessing a Schedule IV controlled substance (Xanax).

Counts one and two, given Linville’s criminal history, had a sentence range of 10-15 years. Linville was sentenced to 12 years imprisonment on both counts to be served concurrently. Count three was given two disparate sentences – a 12-year sentence at the sentencing hearing and an 8-year sentence on the written judgment. This occurred because the parties incorrectly informed the court that count three was a Class C felony like counts one and two when possession of Xanax is actually a Class D felony with a sentence range of 8-12 years.

Linville appealed his conviction, attacking the sufficiency of the evidence, and did not dispute his sentence. The Court of Criminal Appeals affirmed the convictions on this issue. However, Linville had identified the disparity in the sentence imposed by the trial court in person in comparison with the written judgment. The appellate court affirmed the sentence as well, reversing only to direct the trial court to correct the judgment and mark count 3 as a Class C felony. It justified this decision based on the one-level enhancement provision.

Linville appealed this decision, arguing that the appellate court misinterpreted T.C.A. § 39-17-432 and the legislature did not intend for drug convictions near public parks to be subject to either the one-level enhancement or the mandatory minimum requirement. While the appellate court addressed the former issue, Linville argued the latter issue was reviewable as a plain error.

The first issue in the case is the following: Does T.C.A. § 39-17-432’s one-level enhancement provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is no.

T.C.A. § 39-17-432(b), which provides for a one-level enhancement, was amended in 2005 to prohibit any increase in incarceration as a result of that section where the drug offense was committed within 1,000 feet of a public park. Accordingly, Linville’s conviction for possession of a Schedule IV substance could not be sentenced as a Class C felony, as the appellate court held, but as a Class D felony, which had a range of 8-12 years, not 10-15.

The second issue in this case is the following: Does the mandatory minimum provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is yes.

Because Linville did not challenge the mandatory minimum provision at the appellate level, the Supreme Court may only address this issue if it is a plain error. The plain error doctrine permits courts to consider issues not properly preserved if: (1) the record clearly reflects the error (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the issue wasn’t waived for a tactical purpose, and (5) justice requires the error to be considered.

The plain language of § 39-17-432 evinced an intent for mandatory minimum and enhanced sentences and the mandatory minimum provisions in subsections (c) through (e) were self-contained and unaffected by the modifications in subsection (b). Based on that language, § 39-17-432 contains no clear and unequivocal rule of law prohibiting the imposition of mandatory minimum sentences for drug offenses committed within 1,000 feet of a public park, and therefore the plain error doctrine doesn’t rehabilitate Linville’s failure to preserve any issue for appeal concerning the mandatory minimum provision.

Accordingly, because count three had a mandatory minimum of eight years and a suggested maximum of 12 years, the trial court’s sentence of 12 years imprisonment for counts one through three, served concurrently, was not in violation of T.C.A. § 39-17-432 and is affirmed.

This case demonstrates just how difficult it is for the plain error doctrine to win the day on appeal. Courts are hesitant to apply the plain error doctrine and will stop as soon as an element of the doctrine isn’t met, just as the Tennessee Supreme Court did in this case. Accordingly, attorneys need to be vigilant when looking for issues they foresee having any potential for appeal, even if it seems like a longshot. The Court in this case could have dived deeper into other issues related to mandatory minimum sentences, like the rule of leniency or any specific constitutional issues arising out of the Tennessee state constitution but could and would not do so because the defendant had not preserved the issue for appeal. While the Court noted that Linville was able to appeal any aspect of his sentence, it also noted that Linville’s failure to appeal, not object to it at the sentencing hearing, prevented deeper consideration of the mandatory minimum issue. Perhaps bringing up too many issues in one appeal risks wearing out the appellate court’s good will, but in this case, taking that risk could have resulted in a fundamentally different decision.

State of Tennessee v. Shalonda Weems

State of Tennessee v. Shalonda Weems, No. M2018-02288-SC-R11-CD (Sept. 30, 2020).

Written By: Hannah Jones, Associate Editor

Shalonda Weems was a single mother with three small children. Her youngest child, Kar’mn, was six months old in March of 2005. On March 2, 2005, Weems observed Kar’mn acting and eating normally. Kar’mn was sick with a fever on March 1, but Weems noted that Kar’mn was feeling better. On the morning of March 3, Weems found Kar’mn barely breathing and turning blue. Kar’mn passed away later that morning.

Dr. Hawes performed Kar’mn’s autopsy investigation and concluded that Kar’mn’s cause of death was “dehydration and malnutrition with interstitial pneumonitis as a contributory cause of death.” When Dr. Hawes performed the autopsy, Kar’mn had no food or waste products in her body, which was an indicator of malnutrition. Some other signs of malnutrition and dehydration were loss of fat around internal organs, sunken eyes, a sunken fontanel, and dry and doughy skin. Dr. Hawes also noted that Kar’mn’s low level of fat around her organs indicated that she was not receiving proper nutrition for a period of time prior to her death.

Years later, Weems was indicted for aggravated child neglect and felony murder. After the State presented its proof, the defense moved for a judgment of acquittal for aggravated child neglect, arguing that the State failed to prove that Weems “knowingly” neglected Kar’mn – which was an essential element of the crime. The trial court denied this motion so that the jury could decide the issue of neglect. The jury then found Weems guilty of aggravated child neglect and reckless homicide. Weems then renewed her motion for acquittal on both counts, and the trial court granted the motion for the aggravated child neglect charge, finding that the evidence of Weems’s knowledge was insufficient. The Court of Criminal Appeals affirmed the trial court’s grant of the motion for judgment of acquittal and agreed that the evidence was insufficient.

On appeal, the issue presented to the Tennessee Supreme Court was whether the Court of Criminal Appeals erred by substituting its own judgments for those of the jury, determining the weight of witness testimony, failing to view evidence most favorably to the prosecution, and failing to disregard countervailing evidence.
The proper inquiry in reviewing the lower courts’ decisions centered around whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, with all inferences in favor of the prosecution. While Weems was adamant that she fed Kar’mn regularly up until her death, the autopsy contradicted that claim. The conditions present at Kar’mn’s death appeared chronic, indicating that something had been happening over a period of time.

Ultimately, the Tennessee Supreme Court held that the jury could have made a reasonable inference that Weems’s statements were not credible based on the presented medical and scientific evidence. Therefore, a reasonable jury could have concluded that Weems knowingly neglected Kar’mn by not properly feeding her and therefore causing Kar’mn’s death. The Supreme Court reversed the lower courts’ decisions. As a result, the Court reinstated Weems’s conviction for aggravated child neglect.

One implication from this decision is the importance placed on inferences drawn from scientific evidence. The lower courts both did not believe that knowledge could not be reasonably proven through the scientific evidence, but the result on appeal indicates that a jury may reasonably draw inferences from the scientific evidence to establish elements of the crime. The defendant need not state that neglect occurred for the jury to make such an inference.

State of Tennessee v. Lynn Frank Bristol

State of Tennessee v. Lynn Frank Bristol, No. M2019-00531-SC-R11-CD (Apr. 6, 2022).

Written By: Max Pafford, Associate Editor

The Supreme Court of the State of Tennessee considered the case of Lynn Frank Bristol, a man convicted of two counts of aggravated sexual battery. After the trial court denied a motion for a new trial, Bristol appealed the matter to the Court of Criminal Appeals. The Court of Criminal Appeals ultimately granted an order for a new trial, but not on any issue preserved in the trial court or presented before the Court of Criminal Appeals by either party. The case was remanded for a new trial due to an apparent discrepancy between the oral jury instructions and the written ones, with notable definitions seemingly missing from the written instructions.

After hearing of the discrepancy, the State petitioned for rehearing, stating that the original appellate record had no less than 16 missing pages from the actual, written jury instructions. Those pages contained the “missing” definitions. After the State requested remand to the trial court to clarify which set of instructions had been given to the jury, Bristol responded that “certification of the original appellate record conclusively settled any discrepancy. . .” With these competing claims, the Court of Criminal Appeals directed the trial court to prepare a supplemental record, with the entire written and submitted jury charge. When the trial court clerk certified and submitted a record, the Court of Criminal Appeals denied the State’s rehearing petition because certification and submission by the clerk did not show that the trial court, itself, had settled the discrepancies.

At this juncture, the State sought to appeal to the Supreme Court, which first confirmed with the trial court that the second, longer set of instructions had actually been submitted to the jury. The State claimed error by granting relief on an issue unpreserved and unpresented without first giving the parties fair notice and an opportunity to make their case. Examining the issue of abuse of discretion, the Supreme Court agreed with the State, reversing the Court of Criminal Appeals, and reinstating the convictions. The Supreme Court held that the Court of Criminal Appeals abused its discretion in considering an unpreserved, unpresented issue “without giving fair notice and an opportunity to be heard on that issue.”

The Court’s reasoning was split into three major parts: first, discussion of the limitations on appellate review and the extent of the discretionary authority, second, examination for abuse of that discretionary authority, and third, settlement of the matter of discrepancies between the written and oral jury instructions. Identifying two general principles of appellate review, the Court noted: appellate courts are generally limited to those issues presented to it, and jurisdiction is limited to the matters decided in lower courts. The Court determined that both principles serve the adversarial system and promote efficiency, fairness, accuracy, and the appearance of impartiality.

Nevertheless, courts are given some discretion, but, when exercising it, courts must give the parties notice and an opportunity to present their case on the discretionary issue. “At a minimum, an appellate court must give the parties notice of the specific issue it intends to address and sufficient time to review the record, conduct research, and prepare an argument before the court rules on the issue.” Additionally, the Court noted, that “[r]equiring a party to address an issue for the first time in a petition for rehearing after the court has already ruled is inadequate.”

This case puts down a strong marker for how appellate courts in Tennessee can examine unpresented and unpreserved issues going forward. The general manner in which the Court discussed appellate authority heavily implies that the standard issued here extends beyond the context of the criminal courts as well. In future cases, appellate courts and parties have a clear guidepost as to what is required from an appellate court seeking to raise a discretionary, unpresented, unpreserved issue. “Supplemental briefing ordinarily will be” best, but the important thing is that a party has opportunity to “meaningfully address an issue” prior to a court’s ruling.

State v. Myers

State v. Myers

581 S.W.3d 173

No. M2015-01855-SC-R11-CD

Attorney Contributor: Dustin Faeder

Journal Member: Brett Windrow

PDF: State v. Myers

This case started on March 13, 2014, from an inspection initiated due to repeated complaints based on an alleged illegal automobile repair shop in Goodlettsville, Tennessee.[1] This was the second occasion that the inspector, Ms. Sandra Custode, had visited the premises, and this time she intended to collect photographs of the house for evidence.[2]Ms. Custode never entered the property, but the owner/defendant, Leroy Myers, Jr., saw the inspector and angrily screamed at her with clenched fists before he ultimately returned to his garage.[3] Custode left the property when Myers entered the garage, but almost immediately upon driving away she heard “several” shots and turned around to see Myers lowering a gun as one of the people with him laughed.[4] Upon reaching a safe distance, Ms. Custode called the Metro Nashville Police Department, who then arrested Myers and found a shotgun at the residence.[5]

 

The State charged Myers with the Class C felony of aggravated assault, with no reference to reckless endangerment.[6] The defense’s primary argument was that Myers did shoot the gun, but that he was merely scaring a hawk away from his chickens rather than threatening Ms. Custode.[7] At closing of the bench trial, the defense argued that because several Tennessee cases[8] have held that actions similar to Mr. Myers’s did not meet the standard of reckless endangerment, a Class E felony, Mr. Myers’s actions could not meet the standard of the Class C aggravated assault charge at issue here.[9] The Trial Court concluded that, by making this argument, the defense counsel had essentially allowed the charge of reckless endangerment to be added to the indictment, under which the Court found Mr. Myers guilty.[10] The Tennessee Court of Criminal Appeals subsequently affirmed the trial court’s ruling, remanded, and affirmed the ruling upon its second appeal, at which point Mr. Myers appealed to the Tennessee Supreme Court.[11]

The Tennessee Supreme Court presented this issue of first impression as “whether and under what circumstances an ‘effective amendment’ to an indictment in a bench trial by other than affirmative means” can be valid.[12] The Court noted that “effective amendment” has generally been used in the context of a defendant “actively requesting an instruction on an otherwise improper lesser offense.[13]” The Court used State v. Stokes,[14] where the Court reversed a finding by the trial court that the failure to object to an improperly included lesser charge did not constitute effective amendment, to support the proposition that something more than mere passivity is required.[15]

From there, the Court dealt with the issue of whether the defendant here did, in fact, affirmatively amend the indictment.[16] The State argued that the defense did so argue on two bases: one, the closing argument statements, and two, off-the-record conversations.[17] For the former, the Court concluded that a mere trial strategy, such as saying the actions at bar would not even satisfy a similar element in a lesser charge, is not so affirmative as to create an effective amendment.[18] For the off-the-record conversations, the Court essentially said that, if the conversation affected the outcome, it should have been part of the record.[19] After quickly disposing of the idea that the defendant waived his ability to appeal, the Court reversed and remanded the case.[20]

While the Tennessee Supreme Court here was right to limit the reach of the Doctrine of Effective Amendment, the Court had an opportunity to set down a clear rule implicit in the case itself and failed to do so, implicating more appeals and the potential for violation of constitutional rights in the future. While there is a point at which a defendant should be made to face the consequences of their request for or acquiescence in an amendment, there must be clear evidence they did so, and the Court here said as much. In being faced with a judge finding amendment based on a strained reading of a closing argument and a supposed off-the-record waiver, the Court had a chance to lay down that a waiver requires a waiver on the record (a classification which would encompass a charge conference), i.e., something “clear from the record.” That the Court did not do so implies either a willingness to allow amendment based on questionable evidence of acquiescence or an unwillingness to come out and state what their decisions are leading to.

The Tennessee Supreme Court last spoke on the doctrine in 2007 in Demonbreun v. Bell,[21] where they held that an amendment to add a charge that the defendant mistakenly thought was a lesser included charge is an effective amendment.[22] Tennessee appellate courts, by contrast, have heard cases involving the “effective amendment” issue ten times,[23] all of which involved juries rather than bench trials (besides, of course, the prior Myers appeals).[24] This is likely because, as State v. Myers hints at in a footnote,[25] the jury instruction system implemented in jury trials provides a convenient means of determining consent or lack thereof. All this is to say that this is a case of first impression of grafting the rules of Effective Amendment from jury to bench trial, and thus an opportunity to lay a firm groundwork for bench trials going forward.

Unfortunately, while the case’s top line conclusion is undoubtedly the best outcome from a Due Process perspective, Myers leaves much to be desired as far as actual guidance is concerned. Obviously, the facts relied on here, off-the-record conversations and bare reference to legal concepts, are not sufficient to amend an indictment. What is less clear is what else is and is not sufficient. The Court attempts to create a rule, stating that an amendment must be “affirmative,[26]” that the amendment be “clear from the record,”[27] and a strong suggestion in a footnote that trial judges start performing “charge conferences.”[28] Yet, in this very appeal, the appellate court seemed to implicitly think that this appeal met those standards.

On that note, the appeals that resulted from this case demonstrate exactly why guidance on this issue is necessary. To reiterate, this is a case where the State argued that an analogy from a closing argument and an off-record conversation were enough to effectively amend a criminal indictment.[29] Yet, despite these facts and explicit reference to the idea that a court should not “presume consent merely from the accused’s silence,” the appellate court twice ruled this enough to amend the indictment.[30] The appellate court believed that an analogy in a closing argument was “affirmative”[31] and that such an analogy plus reference to an off-the-record conversation is “clear from the record.”[32] This is to say, despite fairly clear judicial language, there has been a tendency for lower courts to construe it more broadly than is justifiable under the case law.

The question, then, is what is the rule that is necessary or, indeed, what rule does the Tennessee Supreme Court seem to be leaning towards? The Court’s clear preference seems to be making charge conferences the norm in bench trials, as this is the only direct procedural suggestion anywhere in the entire opinion. The issue is that this statement clearly is not phrased as a direct command (for one thing, it is relegated to a footnote), and trial judges may be resistant to voluntarily doing so for reasons of judicial economy and preferring the flexibility of establishing charges without resort to scheduling a formal conference. Thus, absent such a clear command, the issue becomes defining what qualities the Court finds beneficial about such conferences that those would be the Court’s only firm suggestion. In the case at bar, the Court finds such a practice beneficial because it makes clear “whether a defendant has actively pursued an instruction on an offense.”[33] The question, then, is what evidence “clear from the record” outside of a record from a charges conference would achieve this?

The type of evidence that would reach this same level of clarity seems to be an on-the-record waiver of any argument against the charge they are convicted under. Such a writing or statement would simultaneously leave a similar kind of “paper trail” the results of a conference would while allowing much of the same flexibility trial courts currently have in establishing charges, short of requiring the scheduling of a formal conference. Furthermore, having a defense attorney describe exactly what the defendant is consenting to or signing would provide a direct explanation of a defendant’s Due Process rights absent under the current ad hoc scheme. Finally, connecting this method to the case at hand, this rule would prevent trial judges from interpreting ambiguous statements or situations as a defendant’s waiver of their right to be informed of the charges against them.

Furthermore, the Tennessee Supreme Court has shown itself able to produce such cases in the past. One of the best cases to analogize to Myers is Momon v. State,[34] which established the fundamental state constitutional right for a criminal defendant to testify in their own defense.[35] In expounding this fundamental right, the Court spent about nine reporter pages[36] describing the exact parameters of the right, including, analogous to Myers, a discussion as to what specifically constitutes a waiver of the right.[37] For the Effective Amendment issue, it is at least conceivable that the Court could have gone into a similar level of detail, especially considering the issue here is more narrowly focused on the waiver issue than Momon’s establishment of a constitutional right. Furthermore, the rule the Court there laid down is nearly completely analogous to this situation. Under Momon, a waiver of the right to testify must be performed by the defendant either in writing or orally on the record. There is no obvious reason why the Court is unable to establish a near-identical rule here.

In this Due Process case stemming from, of all places, an unauthorized pastoral car repair shop, the Tennessee Supreme Court clearly came to the right determination of the defendant’s rights. However, the Court’s broader guidance for future cases is flawed. Besides a suggestion in a footnote that trial courts are completely free to ignore, the Court, to a significant degree, restates the exact same law that resulted in the erroneous determination in the first place. As a result, while legally correct, the Court missed an opportunity to settle the issue presented once and for all by requiring a waiver on the record, and has thus set itself up for these issues to continue into the future.

[1] State v. Myers, 581 S.W.3d 173, 175-76 (Tenn. 2019).

[2] Id. at 176.

[3] Id..

[4] Id..

[5] Myers at 176.

[6] Id. at 175.

[7] Id. at 178.

[8] Specifically, State v. Payne, 7 S.W.3d 25 (Tenn. 1999), State v. Terrence Shaw, 2011 Tenn. Crim. App. LEXIS 390.

[9] Myers at 178.

[10] Id. at 178-79.

[11] Id. at 179. For the two appellate level rulings, see State v. Myers, 2016 Tenn. Crim. App. LEXIS 826 (“Myers Appeal I”); State v. Myers, 2018 Tenn. Crim. App. LEXIS 286 (“Myers Appeal II”).

[12] Id. at 182.

[13] Id. at 183 (citing State v. Williams, 558 S.W.3d 633, 637 & n.1 (Tenn. 2018))(emphasis in original).

[14] 24 S.W.3d 303 (Tenn. 2000).

[15] Myers at 183-84.

[16] Id. at 184.

[17] Id..

[18] Id. at 184-85.

[19] Id. at 185.

[20] Id. at 186-88.

[21] 226 S.W.3d 321 (Tenn. 2007). One other reported Supreme Court case, State v. Williams, 558 S.W.3d 663 (Tenn. 2018), referenced the Doctrine, but only as an aside in a footnote. Id. at 537, n.1.

[22] Demonbreun v. Belle, 226 S.W.3d 321, 326-27 (Tenn. 2007).

[23] Including two appeals of the current case.

[24] These include the two aforementioned Myers appeals, State v. Chapman, 2013 Tenn. Crim. App. LEXIS 228, Chapman v. Shepard, 2013 Tenn. Crim. App. LEXIS 606, State v. Spraggins, 2010 Tenn. Crim. App. LEXIS 365, State v. Grey, 2007 Tenn. Crim. App. LEXIS 990, State v. Campbell, 2015 Tenn. Crim. App. LEXIS 860, State v. Austin, 2015 Tenn. Crim. App. LEXIS 343, State v. Collins, 2017 Tenn. Crim. App. LEXIS 981, State v. Ortega, 2015 Tenn. Crim. App. LEXIS 295.

[25] Myers at 187, n.5.

[26] Id. at 184.

[27] Id. at 186 (emphasis in the original).

[28] Id. at 187, n.5.

[29] Id. at 183.

[30] Myers Appeal I at *13, Myers Appeal II at *12-*13.

[31] Myers Appeal II at *12-*13.

[32] Id.

[33] Myers at 187, n.5.

[34] 18 S.W.3d 152 (Tenn. 1999).

[35] Id. at 161.

[36] Id. at 157-69.

[37] Id. at 161-63.