State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen-Concurring
M2015-02375-CCA-R3-CD
| Tenn. Crim. App. | Dec 7, 2016Background
- Defendant Kevin Patterson (aka John O’Keefe Varner / John O’Keefe Kitchen) faced repeat-violent-offender enhancement that can result in life without parole.
- The State filed a pre-trial notice under Tenn. Code Ann. § 40-35-120(i)(2) but did not strictly set forth the dates of prior periods of incarceration as the statute text appears to require.
- The majority opinion concluded the notice failed to comply with statutory requirements (lead opinion not included here); Judge Holloway concurred but wrote separately to discuss substantial-compliance arguments.
- Judge Holloway observed a practical argument that the violent nature of prior convictions (second-degree murder and facilitation of second-degree murder) and defendant’s knowledge of multiple incarcerations might render the deficient notice sufficient in substance.
- He discussed statutory interpretation principles distinguishing mandatory versus directory use of "shall," citing Myers and Holdredge, and noted the potential for treating non-essential details as directory so that substantial compliance suffices.
- Judge Holloway nevertheless recognized State v. Cooper, where the Tennessee Supreme Court required strict compliance for life-without-parole notice analogues, and concluded that until the Supreme Court rules otherwise, strict compliance is the safer course.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State's pre-trial repeat-violent-offender notice must strictly set forth dates of prior incarcerations under Tenn. Code Ann. § 40-35-120(i)(2) | State implicitly argues notice was sufficient (not detailed in concurrence) | Patterson argues lack of dates means statutory notice requirement not met; insufficient notice to impose life without parole | Concurrence suggests substantial compliance could be argued, but until the Tennessee Supreme Court says otherwise, strict compliance should be required |
| Whether the word "shall" in § 40-35-120(i)(2) is mandatory or directory (i.e., whether omission of dates is fatal) | State would prefer directory interpretation for non-essential details | Patterson argues "shall" is mandatory and omission is fatal | Holloway J. notes Myers/Holdredge support a contextual test; but Cooper counsels treating notice requirements strictly for life-without-parole consequences |
Key Cases Cited
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (explains test for whether statutory "shall" is mandatory or directory)
- Holdredge v. City of Cleveland, 402 S.W.2d 709 (Tenn. 1966) (distinguishes mandatory provisions as those relating to the essence of the thing to be accomplished)
- State v. Cooper, 321 S.W.3d 501 (Tenn. 2010) (refused to uphold life-without-parole sentence where substantially compliant notice was filed after trial; supports strict notice requirements)