House Passes Bill to Bypass CCA in Death Penalty Cases

The Tennessee State House last week passed legislation that removes the appeal to the Court of Criminal Appeals in death penalty cases, instead sending the cases straight to the Tennessee Supreme Court, The Commercial Appeal reports. The "Sgt. Daniel Baker Act" — named after a Dickson County sheriff's deputy killed in the line of duty — was proposed out of concerns that the current system drags out the death penalty process. Court of Criminal Appeals Presiding Judge John Everett Williams said of the bill: "We are not the reason these cases are taking 30 years,” further stating that the cases are given priority and are normally handled in a three to five-month timeframe. The legislation is still being considered by the Senate.
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Court of Criminal Appeals Boot Camp 2018

The Tennessee Bar Association’s Appellate Practice Section held its annual boot camp this past Wednesday. Produced by Section Chair Kyle Wilson and Vice-chair Leslie Price, this year’s boot camp was focused on criminal appeals. Attendees viewed oral arguments at the Court of Criminal Appeals and enjoyed a Q&A with the presiding judges. Following court, boot camp participants moved to the Tennessee Bar Center for a networking lunch and oral advocacy panel with the attorneys who presented arguments that morning discussing briefs, argument preparation and providing practice tips. The TBA would like to thank Kyle, Leslie and the TBA Appellate Practice Section for another successful program!

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Prior Crimes Not So Unique as to be Admissible Under TRE 404(b)

There are only so many ways that a particular crime can be committed, so how unique is a particular crime to another such that it is evidence of the identity of the perpetrator? TCCA ruled in State v. Peterson, Tenn. Crim. App. No. W2017-00308-CCA-R3-CD, Apr. 25, 2018, that the other crimes weren’t so distinctive or unique as to be admissible to prove identity in the case then-at-bar.
The court quoted several cases including State v. Roberson, 846 S.W.2d at 280 (Tenn. Crim. App. 1992).  “[M]ere similarity in the manner in which two crimes are committed does not produce the relevance necessary for admission — uniqueness does. For not only must the offenses have been committed similarly, but they must also have been committed in a unique and distinctive manner. Obviously, the more unique and distinctive the methods, the more appropriate is the inference. The converse also obtains that is, the less unique and distinctive the methods, the less appropriate the inference.”

Roger E. Nell serves as District Public Defender, 19th Judicial District and chairs the Tennessee Bar Association's Criminal Justice Section. 
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Appellate Practice Tip: What is the Mandate?

In ordinary parlance, a mandate is an official order to do something, or alternatively, the authority to carry out a policy or course of action. Under T.R.A.P. 42, however, the mandate of the appellate court is defined as, “Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court ....”
In the case of an appeal taken to the Supreme Court, the clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court with notice to the parties. Rule 42(a) requires that this be done “Eleven days after entry of the judgment unless the court orders otherwise.” Since a petition for rehearing may be filed within 10 days after the date the decision is filed, the rule further provides that the timely filing of the petition for rehearing will stay the mandate until disposition of the petition for rehearing. If the petition is denied, as it almost always is, the mandate shall issue immediately upon the filing of an order denying the motion for rehearing. When the case is remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise.
The clerk of the Court of Appeals and the clerk of the Court of Criminal Appeals have the duty to transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals. That mandate must be sent no later than 64 days after the entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate temporarily. Rule 42 provides that the clerk of the appellate court is responsible for collecting the clerk’s fees and that the mandate should not be delayed for the taxing of costs.
In cases in which review by the Supreme Court of the United States is sought, the appellate court whose decision is sought to be reviewed may stay the mandate. (Emphasis added) The clear implication of Rule 42(c) is that the decision of whether to stay the mandate when an appeal is sought to the Supreme Court of the United States is within the sound discretion of the Tennessee appellate court. (Also, under Rule 42(d), the court possessing the power to stay a mandate also includes the power to recall a mandate.)
Once the mandate is issued by the appellate court, the clerk of the trial court has the responsibility to promptly file it. See T.R.A.P. 43(a). If the appellate court has dismissed the appeal or affirmed the judgment of the trial court, once the mandate is filed in the trial court, the prevailing party may issue execution to enforce the judgment. T.R.A.P. 43(b).
The mandate is simply the order of the appellate court that disposes of the case in the appellate court and sends the case back to the trial court to handle the case. If the trial court is affirmed, the mandate allows the prevailing party to proceed. If the appeal is dismissed, the mandate gives the trial court the authority to conduct post-judgment proceedings, if any. It is important for appellate practitioners to understand the significance of the appellate court mandate and not to confuse it with the appellate court’s opinion, which is only a part of the mandate.

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
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Appeals Court Ruling Calls Tennessee DUI Conviction 'Fee System' Unconstitutional

Tennessee Court of Criminal Appeals has ruled that a state law giving the Tennessee Bureau of Investigation a $250 fee in DUI convictions is unconstitutional. The ruling is a result of a Hamilton County DUI case of a woman who argued her blood test should be suppressed because the fee system violated her right to a fair trial and gave the TBI a financial motivation to get convictions. The case was consolidated with more than 20 others of defendants who gave blood or breath samples to authorities.

The appeals court said in the 28-page ruling, "Based on the record before us, the TBI, and specifically, the forensic science division is dependent on these BADT (blood alcohol or drug concentration test) fees. Given the upward trend in BADT collections for each successive year, we believe that the TBI will become increasingly reliant on these fees in the future, which only serves to heighten the potential for bias among TBI forensic scientists. The fee system in TCA § 55-10-413(f) also closely resembles cases in which expert witnesses or attorneys have been disqualified for conflicts of interest."

The Tennessee Attorney General's Office is reviewing the decision, which could be appealed, according to the Tennessean. The income from the fee has been increasing and now is above $3 million per year, the paper reports.

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Extraordinary Appeal Granted in Brentwood Academy Assault Lawsuit

Last week, the Tennessee Court of Appeals granted an application for extraordinary appeal in the Brentwood Academy assault lawsuit, according to The Tennessean. This decision reignites the controversial dispute previously dismissed by Williamson County Circuit Court Judge Deanna Johnson. The suit, filed in August 2017, alleges John Doe was repeatedly sexually assaulted in a locker room by older students during the 2014-15 school year. It also alleges that school officials failed to appropriately respond to and prevent the attacks. 
The case took a surprising turn last month when it was dismissed by Johnson amidst an argument over the deposition of Bureon Ledbetter, an attorney for the John Doe and family. Ledbetter argued the information he was asked to reveal through the deposition would violate attorney-client privilege. Johnson said Ledbetter could file an objection but must answer. If he did not, she threatened to put him in jail for contempt, according to court documents. At that point, the Does' second attorney, Justin Gilbert, tried to withdraw the case without prejudice, with the intent to refile. However, the same day Johnson granted an order requested by Brentwood Academy attorneys to dismiss the case with prejudice. Despite Johnson's order dismissing the case, the Williamson County court docket states the case is technically still open as Johnson still needs to file a findings of fact offering an explanation as to why the case was dismissed. 
Both the school and the accused students have denied all wrongdoing.
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Appellate Retroactivity Rules: The Pipeline Doctrine

It is important to be aware of developing legal issues so that if the Tennessee Supreme Court creates some new right or remedy you can take advantage of the ruling even though your case has already been adjudicated. This is known as the “pipeline doctrine” which grants limited retroactive relief if the litigant has preserved the issue in anticipation of a change in the law. This is a tricky process which requires anticipatory litigation and adequate record preservation for pending cases and appeals.
When the Supreme Court releases an opinion involving an entirely new doctrine of law, the Court frequently articulates how that doctrine will impact pending cases and appeals. For example, in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the Supreme Court discussed a new jury instruction on witness identification. At page 612, the Court held that “this ruling is applicable to cases now on appeal and those cases tried after the release of this opinion.” This meant that the opinion was given pipeline application.
In State v. Walker, 905 S.W.2d 554 (Tenn. 1995), the Court held that persons under criminal sentence who present themselves for incarceration but are turned away by the sheriff may consider the sentence satisfied under certain circumstances. The Supreme Court held, at page 557, that “we are also persuaded that the rule announced today should be prospective only and should apply only to cases tried or retried after the date of this opinion and in cases on appeal in which the issue has already been raised.”
In State v. Enochs, 823 S.W.2d 539 (Tenn. 1991), the Court found that the thirteenth juror rule applied to all cases which were pending on direct review at the time the rule was reinstated and became effective. Lawyers who raised the issue prior to the release of Enochs, obtained a new trial for their clients after Enochs was rendered. See e.g., State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993).
This “pipeline” doctrine is not limited only to criminal cases. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted new rules regarding comparative fault. At page 58, the Court held that the opinion would apply to “all cases tried or retried after the date of this opinion and all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.” Identical language can be found in McClung v. Delta Square Partnership, 937 S.W.2d 891, 905 (Tenn. 1996) (landlord liability for crimes committed against innocent third parties by criminals on the premises); Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn. 1994) (parental immunity); and Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (the “lex loci delicti”) choice of law doctrine in a wrongful death action). 
There may be constitutional limitations on the retroactivity doctrine. See, Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), which that state courts could constitutionally choose to apply a state court decision departing from established precedent in either a retroactive or prospective manner. The United States Supreme Court had adopted “a posture of non-retroactivity” only where three conditions are present: (1) the decision at issue establishes a new principle of law by overruling clear past precedent, (2) retroactive application will retard its prospective application, and (3) retroactive application could produce substantial inequitable results to the instant litigants.
The lesson to be learned here is that attorneys should be aware of pending issues in the Tennessee Supreme Court and preserve the issue in anticipation of a possible change in the law so the client can retroactively take advantage of the new ruling. 
David Raybin is a Middle Tennessee Delegate of the executive council for the Tennessee Bar Association's Appellate Practice Section. Raybin has been named the Best Criminal Lawyer in Nashville in criminal general practice and white collar defense by Best Lawyers in America and listed among the Best Criminal Lawyers in TN by Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.
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Appellate Law Section Connect


We had a packed house for the TBA Supreme Court Academy, which the Appellate Practice section held in collaboration with the UT College of Law on Sept. 6. I would like to thank the Supreme Court, Professors Lucy Jewel and Penny White, and the advocates who argued so well and stayed afterwards to discuss the argument and their preparation for the argument. 



Appellate Practice Tip: Appellate Mediation

Pursuant to Rule 34 of the Tennessee Rules of Appellate Procedure, parties may request voluntary mediation while the case is pending in the Court of Appeals. Parties desiring to engage in mediation should file a joint stipulation requesting suspension of the appeal with the clerk of the appellate courts. Upon the filing of a timely joint stipulation, the time for preparing the transcript or statement of the evidence, the record on appeal and the brief shall be suspended for no more than 60 days to enable the parties to mediate their dispute.
The provisions of the voluntary mediation rule, however, do not apply to appeals required to be expedited by statute, rule or order of court, appeals in which the constitutionality of a statute or rule or the constitutionality of an application of a statute, ordinance or rule is an issue, or appeals involving the imposition of criminal contempt sanctions.
If the mediation is successful, the parties should file a Notice of Voluntary Dismissal of the appeal.
Note: The practice in state court is different than the practice in the Sixth Circuit Court of Appeals. In the Sixth Circuit, absent good cause, the parties are expected to participate in mediation, which is conducted by a sixth circuit mediator who is an employee of the Sixth Circuit Court of Appeals.
In the last Legal Practice Tip, we discussed cost and stay bonds. We have been advised that the clerk of the appellate court will soon begin collecting court costs on the front end, so no cost bond will be posted. Stay bonds will continue to be handled first in the trial court, subject to review on appeal.
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