State of Tennessee v. Christopher Minor-Concur In Part, Dissent In Part, W2016-00348-CCA-R3-CD

Defendant Christopher Minor convicted with a gang enhancement under Tenn. Code Ann. § 40-35-121; he confessed and testified he committed the offense at the gang’s direction.
At a bifurcated proceeding, the State presented a gang expert and a gang file; the trial court treated the proceeding as a sentencing hearing rather than an extension of the guilt phase.
This opinion is a concurrence/dissent by Judge Camille R. McMullen: she agrees with the majority on sufficiency of the evidence but disagrees about waiver and retroactivity of the court’s recent ruling in State v. Bonds.
In Bonds the court held portions of the gang-enhancement statute unconstitutional for failing to require a nexus between the underlying offense and gang activity, and treated enhancement proof as part of the guilt phase.
Judge McMullen argues Bonds announced a new rule that should apply retroactively to cases on direct review or not yet final; she would vacate Minor’s gang-enhancement convictions and remand for a new trial on enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for gang enhancement	State: evidence (confession, testimony, expert, photos, tattoos) supports enhancement	Minor: (implicitly) challenges sufficiency	Concurrence: agrees with majority that evidence suffices (no reversal on sufficiency)
Waiver of constitutional challenge / retroactivity of Bonds	State/Majority: defendant waived the constitutional challenge	Minor (and concurring judge): Bonds is a new rule and should apply retroactively to cases on direct review; issue not waived	Concurrence: would not find waiver and would apply Bonds retroactively
Constitutionality of § 40-35-121(b) (nexus requirement)	State: statute valid as applied	Minor: statute lacks a nexus and violates substantive due process	Bonds (as cited by concurrence): statute constitutionally defective for lacking a nexus; enhancement must relate to gang-related conduct

State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016) (held gang-enhancement elements are part of guilt phase and § 40‑35‑121(b) lacks a required nexus and is unconstitutional)
Griffith v. Kentucky, 479 U.S. 314 (1987) (new constitutional rules apply to cases pending on direct review)
Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new rules)
Meadows v. State, 849 S.W.2d 748 (Tenn. 1993) (Tennessee approach to retroactivity of state rules)
State v. Robbins, 519 S.W.2d 799 (Tenn. 1975) (retroactivity of newly announced state constitutional rules)
Bush v. State, 428 S.W.3d 1 (Tenn. 2014) (retroactive effect of constitutional rulings is a judicial question)
State v. Cecil, 409 S.W.3d 599 (Tenn. 2013) (defendant on direct appeal entitled to benefit of newly announced rule)
State v. White, 362 S.W.3d 559 (Tenn. 2012) (example of applying new rules to cases on direct appeal)